PIL Reviewer

PUBLIC INTERNATIONAL LAW
*
BAR REVIEWER 2016

*
This reviewer is based on the Public International Law (PIL) syllabus of the 2017 Bar Examinations. The reference
materials used were the following: the PIL Bar Reviewer (2009) of Atty. Sarmiento, Introduction to PIL (2009) of
Father Bernas, the Handbook of International Law by Anthony Aust (2010), Principles of International
Environmental Law by Philippe Sands (2012), notes from the lectures of Atty. Abad, Atty. Arriola, Atty. Magante,
Atty. Aguinaldo and Atty. Sta. Maria, the Powerpoint presentation of Justice Carpio on the West Philippine Sea,
the ASIL PIL reviewer of Atty. Macaraeg, the Nationality and Statelessness Handbook (2005) by the Inter-
Paliamentary Union with the UNHCR, and previous ASIL PIL Bar Reviewers of past members of the ASIL
Executive Committee. This is dedicated to all ASIL bar takers. One Team. One Dream.
2017 edition by:
Ralph Samuel T. Yu, Mayumi G. Matsumura,

Juan Paolo P. Banadera, Darlene Mae P. Beloso, and Tiffany T. So

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TABLE OF CONTENTS
I. Concepts of Public International Law................................................................ 1

II. International Law & National Law ...................................................................... 2
III. Sources of International Law.............................................................................. 2
IV. Subjects of International Law ............................................................................. 5
V. Diplomatic and Consular Law ............................................................................ 7
VI. Treaties ............................................................................................................... 19
VII. Nationality & Statelessness .............................................................................. 22
VIII. State Responsibility .......................................................................................... 23
IX. Jurisdiction of States ........................................................................................ 26
X. Treatment of Aliens ........................................................................................... 29
XI. International Human Rights Law ...................................................................... 30
XII. International Humanitarian Law & Neutrality .................................................. 33
XIII. Law of the Sea.................................................................................................... 37
XIV. International Environmental Law ..................................................................... 41
XV. Case Doctrines of Philippine PIL Cases .......................................................... 42
XVI. Current Events ................................................................................................... 46

I. CONCEPTS OF PUBLIC INTERNATIONAL LAW
A. O BLIGATIONS ERGA OMNES
Q. What are obligations erga omnes?

A. According to the Barcelona Traction case, obligations erga omnes are those obligations of
a State towards the international community as a whole. These concern those rights which,
by virtue of their importance, interest all States. Since critical rights are involved, any state
has the right to bring a complaint against a breach of such obligations.
Q. What are some examples of obligations erga omnes?

A. Such obligations derive from the outlawing of acts of aggression, genocide, slavery, torture.
B. JUS COGENS
Q. What is jus cogens? (Bar 2012)

A. According to Art. 53 of the Vienna Convention on the Law of Treaties (VCLT), a peremptory
norm of international law is a norm accepted and recognized by the international community
of states as a norm from which no derogation is permitted and which can only be
modified only by a subsequent norm of general international law having the same character.
Q. What happens when a treaty conflicts with a jus cogens norm?

A. According to Art 53 of the VCLT, the treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law.
Q. What are the rules considered to be jus cogens?

A. While there is a wide acceptance of the existence of jus cogens, there is a wide dispute as
to what principle rank as jus cogens. According to a 2006 Report of the International Law
Commission (ILC), however, the most frequently cited examples of jus cogens norms are the
prohibition against aggression, slavery and slave trade, genocide, racial discrimination
apartheid and torture, and the right to self-determination.
C. EX AEQUO ET BONO
Q. Explain the concept of ‘ex aequo et bono’.

A. This principle is found in Art. 38(2) of the Statute of the International Court of Justice (ICJ).
According to this provision, the parties to a case before the ICJ may stipulate and therefore
ask the Court to decide their dispute based solely on equity and outside the recognized set of
rules under international law.
Q. What is its difference from equity?

A. Equity, as a generally accepted principle, [Art. 38(1)(c)] is also a source of obligation under
international law.
PAGE | 1

II. INTERNATIONAL LAW & NATIONAL LAW
Q. What is International Law?

A. CLASSIC D EFINITION - It is a body of rules and principles of action which are binding
upon civilized states in their relations to one another.
B. 3RD RESTATEMENT OF FOREIGN RELATIONS D EFINITION - The law concerned with the
conduct of states and of international organizations and with their relations inter
se, as well as with some of their relations with persons, whether natural or juridical.
Q. What is Municipal Law?

A. Municipal Law is a product of local custom or legislation that regulates relations between
individual persons under the state. It is the law of the sovereign over individuals.
Q. Explain the dualist and monist theories.

A. The dualist theory maintains that international law and municipal law belong to different
systems of law. The monist theory maintains that both belong to only one legal system.
Q. In case of conflict between international & domestic law, which prevails?

A. It depends on the theory adhered to by the State in whose jurisdiction the conflict appears.
Those who maintain the dualist theory hold that in case of conflict, municipal law prevails.
Those who adhere to the monist theory tend to fall to two categories: one group holds the
supremacy of international law (Kelsen), the other group holds the supremacy of domestic
law (Lauterpacht).
Q. Differentiate Public International Law (PIL) & Private International Law (PRIL).
A. PIL governs the relationships between and among states and also their relations with
international organizations and individual persons. PRIL otherwise known as Conflicts of Law,
is that part of municipal law which determines whether in dealing with a legal situation, the
law or judgment of another state will be recognized and given effect or applied (Coquia).
III. SOURCES OF INTERNATIONAL LAW
Q. What are the sources of International Law? (Bar 2012)

A. According to Art. 38(1) of the Statute of the International Court of Justice (ICJ), the sources
of international law include: (1) international treaties and conventions; (2) customary
international law; (3) generally accepted principles of law (GAPL); and (4) judicial decisions
and teachings of the most highly qualified publicists (MHQPs).
Q. What is the difference between formal and material sources of IL?

A. Formal sources are those legal procedures and methods for the creation of rules of general
application which are legally binding on the addressees. Examples of formal sources include
legislation, treaty making, judicial decision making, and practice of states. Material sources,
on the other hand, provide evidence for the existence of rules, which, when proved, have the
status of legally binding rules of general application. As such, state practice, UN Resolutions,
judicial decisions, treaties, and the writings of most highly qualified publicists are considered
material sources in so far as they provide what the obligations are.
PAGE | 2

Q. Is there a hierarchy among the sources?
A. No. The sources mentioned in Art. 38(1) of the ICJ Statute simply prescribes the order
rather than the hierarchy of the sources that the ICJ must adhere to. Thus, a distinction must
be made between the first three sources as against the fourth source. While the first three
(i.e. treaty, custom, GAPL) are primary sources, the fourth (i.e. judicial decisions, teachings
of MHQPs) are subsidiary in nature. As such, judicial decisions and teachings of MHQPs have
persuasive value before the court insofar as they aid the interpretation of the primary sources.
A. TREATIES
Q. What is a Treaty?
A. A treaty is an: (a) international agreement; (b) conducted between states; (c) in written
form; and (d) governed by international law; (e) whether embodied in a single instrument or
in two or more related instruments, and whatever particular designation they may be given.
[VCLT, Art. 2(1)(a)]
Q. How can one bind his State in entering a treaty?

A. Two ways: either (1) the person is a representative of a State; or (2) s/he possesses full
powers. [VCLT, Art. 7]
Q. How are treaties interpreted?

Treaties must be interpreted in good faith and in accordance with the ordinary meaning given
to the terms of the treaty in their context and in light of its object and purpose (VCLT, Art.
31). Supplementary means of interpretations include: (a) preparatory works of the treaty;
and (b) circumstances to the treaty’s conclusion. [VCLT, Art. 32]
Q. What is the difference between a State-party and a signatory to a treaty?

A. A State-party is bound to abide by all the provisions of the treaty. A signatory, according
to Art. 18 of the VCLT, is only bound to refrain from doing acts which defeat the object and
purpose of the treaty.
Q. What if treaty and custom contradict each other?

A. The answer varies. In the Wimbledon case, a treaty that came later than a particular
custom prevailed since it manifested the deliberate choice of the parties and the principle of
pacta sunt servanda. Article 53 of the VCLT however, emphasizes that a later treaty is “void
if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law.”
Q. What is the Philippine practice with regard to treaties?

A. The following are the relevant Constitutional provisions:
• Foreign loans: Art. VII, Sec. 20 (with prior concurrence of the Monetary Board)
• Treaties: Art. VII, Sec. 21 (with concurrence of at least two-thirds of the Senate)
• Military bases: Art. XVIII, Sec. 25 (with the U.S.; majority of votes cast by the people
in a national referendum)
• Constitutionality of treaties: Art. VIII, Sec. 4 (concurrence of majority of members of
the Supreme Court who actually took part in the deliberations)
PAGE | 3

B. CUSTOMARY INTERNATIONAL LAW
Q. What is Customary International Law?

A. According to the North Sea Continental Shelf Case, it consists of unwritten rules evinced
from the generality and uniformity of the practice of States and is adhered to by such states
out of a sense of legal obligation or opinio juris.
Q. What are the requisites of Custom?

A. According to the North Sea Continental Shelf Case, the following are the requisites for a
certain practice to achieve customary status: (a) duration; (b) uniformity and consistency of
practice; (c) generality of practice; and (d) a sense of legal obligation or opinio juris et
necessitates.
Q. How long should a practice be before it is considered customary?

A. There is no “numerical” requirement. According to the North Sea Continental Shelf Case,
although the passage of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary law, state practice within the period, no matter how
short it might be, should have been both extensive and virtually uniform.
Q. Should there be total uniformity for a practice to be considered customary?

A. Total uniformity is not required. The ICJ in the North Sea Continental Shelf Cases and
MHQP Ian Brownlie are one in saying that what is needed is virtual uniformity or consistency.
The ICJ has recognized in the Asylum Case and in Nicaragua v. United States that uniformity
and generality of practice need not be in “in absolute conformity” with the forwarded custom,
but the same must be substantial.
Q. Should ALL states adhere to a practice for it to be customary?

A. No, according to the North Sea Continental Shelf Cases, for a practice to be general, it
must be adhered to by majority of ‘specially affected’ states. This means that customary law
may even bind only two states, for as long as the party claiming it must prove that the
purported custom also binds the other parts, as shown in Right of Passage over Indian
Territory.
Q. What is opinio juris? (Bar 2008)

A. According to the Lotus case and the North Sea Continental Shelf Cases, it is the recognition
and feeling of a State that they are conforming to what amounts to a legal obligation, rather
than something that is just done out of courtesy, fairness or morality.
Q. What is the value of Resolutions adopted by the U.N. General Assembly?

A. Generally, resolutions and declarations of the UNGA are not considered binding. However,
this is not the case when: (a) it concerns internal administrative matters (e.g. finances,
admission of new members, etc.); or (b) when such documents are unanimously adopted by
all States. Under the second case, such occurrence is usually considered as evidence of opinio
juris.
Q. What is the concept of “persistent objector”?

A. A state may not be bound by custom if since the process of formation and development of
the custom, such state has expressed its objection to the practice. The evidence of objection
must be clear and unequivocal.
PAGE | 4

Q. How is custom proven?
A. State practice may be evidenced by various forms such as treaties, diplomatic
correspondence, statements of national leaders and political advisers, and the conduct of
states. It must be noted however, that these only arise as customary law if they are
characterized by opinio juris, the existence of which is subject to the proof discharged by the
state claiming it.
Q. What is the Philippine practice with regard to customary international law? (Bar
2012)
A. According to Art. 2, Sec. 2 of the Constitution, the Philippines “adopts the generally
accepted principles of international law as part of the law of the land.” This provision, more
popularly known as the incorporation clause, considers both norms under customary
international law and generally accepted principles of law as part of the law of the land.
C. G ENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW
Q. What are Generally Accepted Principles of International Law?

A. General principles of law are principles of municipal law common to the legal systems of
the world. These are concepts such as estoppel, reparation, and due process of law.
D. JUDICIAL D ECISIONS AND M OST H IGHLY Q UALIFIED PUBLICISTS
Q. Is the ICJ bound by its prior decisions? (Bar 2013)

A. No, according to Art. 59 of the ICJ Statute, decisions of the Court have no binding force
except as between the parties and in respect of a particular case. The Court does not adhere
to the doctrine of stare decisis.
Q. Can the Court apply decisions of national courts, or other international tribunals
(e.g. ICC, ICSID, ITLOS)?
A. Yes, Art. 38(1)(d) of the ICJ Statute does not distinguish between cases decided by the
ICJ as against those decided by other courts, whether international or local.
Q. Who is a most highly qualified publicist?

A. A most highly qualified publicist is one who is: (a) published; and (b) recognized as an
expert in the field of international law he/she is writing about.
IV. SUBJECTS OF INTERNATIONAL LAW
Q. Who are the subjects of International Law?

A. Subjects of international law are those recognized as capable of possessing rights and
duties and of bringing international claims. Generally, only States are recognized to be
subjects of international law because: (1) it possesses rights anchored on State responsibility;
and (2) its ability to bring forth claims against other States. However, as will be shown, other
entities such as corporations, international organizations, and individuals now have certain
mechanisms by which their claims may be brought forth international tribunals or courts.
PAGE | 5

A. STATES
Q. What is a State?
A. According to Art. 1 of the Montevideo Convention, a state is one with the following
qualifications: (a) a permanent population; (b) defined territory; (c) government; and (d)
capacity to enter into relations.
Q. What are the standards for each requisite of Statehood?

A. (a) Population: no numerical requirement; so long as they are capable of maintaining and
governing themselves, a population may be had. (b) Defined territory: there is no minimum
amount of territory required; so long as there is a place where the population could occupy
and function in, a defined territory is present (c) Government: there is no specified kind or
type of government required; so long as it exercises sovereignty and supremacy within, a
government is present (d) Capacity to enter into relations: power and right to enter into
foreign relations without restraint from another entity.
Q. What are the theories of recognition of States?

A. There are two: (1) constitutive; and (2) declaratory. On one hand, the constitutive theory
states that when a State is recognized by the international community as a state, then it is a
State. The declaratory theory, on the other hand, requires compliance with the four requisites
of Statehood as laid down in the Montevideo convention for one to be recognized as a state.
B. INTERNATIONAL O RGANIZATIONS
Q. How are International Organizations subjects of international law?

A. International organizations are those set up by treaty among two or more states. Some
international organizations have the ability to make claims under international law. However,
such ability is limited by the organization’s charter. For example, the U.N., in Reparations for
Injuries Suffered in the Service of the United Nations, was able to sue for damages caused to
an agent through an international claim. While it does not have the same rights and duties as
States, it has the legal capacity to do “what is necessary” in the exercise of its functions and
fulfilment of its purposes. (Art. 104, UN Charter)
Q. What is the principle of specialty?

A. According to the Advisory Opinion on the Use of Nuclear Weapons, it is the principle of that
governs international organizations wherein they are invested by the State which created
them with powers, the limits of which are a function of the common interests whose promotion
those states entrust to them.
C. CORPORATIONS
Q. How are Corporations subjects of international law?

A. Corporations, in certain instances, now have the ability to make international claims before
tribunals. This is the case when what is entered into is an internationalized contract. When
such contracts are entered into by corporations, it acquires a limited capacity, by invoking the
rights derived from the contract. Usually, the medium by which these corporations may
enforce their rights is arbitration.
PAGE | 6

D. INDIVIDUALS
Q. How do individuals become subjects of international law?

A. While the classical rule states that humans are mere objects of international law
(beneficiaries of rights provided by instruments such as international human rights treaties),
they are now considered as subjects, although in a limited way. As a subject, not only may
one bring claims, he/she also may be held accountable under international law. In the
International Criminal Court, for example, individuals may be tried for the commission of the
core crimes, which are: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d)
crimes of aggression.
V. DIPLOMATIC AND CONSULAR LAW

Q. What is diplomacy?
A. Any means by which States establish or maintain mutual relations, communicate with each
other, or carry out political or legal transactions, in each case through their authorized agents.
Diplomacy may thus exist between States in a state of war or armed conflict with each other,
but the concept relates to communication, friendly or hostile, rather than the material forms
of economic or military conflict.
Q. What is the legal status of diplomatic and consular law under the Vienna
Convention on Diplomatic Relations (VCDR)?
A. According to the ICJ in the Tehran Hostages case, although parts of the VCDR were
progressive, widespread acceptance and implementation means that is now is mostly
reflective of customary international law.
Q. How are diplomatic relations between States established?

A. The establishment of diplomatic relations between States, and of permanent diplomatic
missions, takes place by mutual consent. (VCDR, art. 2)
Q. How are diplomatic relations terminated?

A. Since diplomatic relations are consensual, they may be terminated by withdrawal of the
mission by either the sending or receiving State.
Q. Explain the inviolability of the premises of the mission.

A. The premises of the mission are the buildings or parts of the building and land ancillary
land used for the purposes of the mission [VCDR, art. 1(i)]. The premises of the mission shall
be inviolable from intrusion by agents of the receiving State unless done with the consent of
the head of the mission. It also obligates the receiving State to take all appropriate steps to
protect the premises of the mission against intrusion or damage and to prevent any
disturbance of the mission’s peace or impairment of dignity. The receiving State must also
respect the premises of the mission’s immunity from search, requisition, attachment, or
execution. (VCDR, art. 22)
Q. What is the extent of the mission’s inviolability with respect to its archives,
documents, and official correspondence?
A. The archives and documents of the mission as well as its official correspondence is
inviolable at any time and wherever they may be. (VCDR, arts. 24 and 27). In Tehran
Hostages, there was a significant breach of this obligation when the US embassy was
PAGE | 7

ransacked and documents purporting to come from the diplomatic archive of the mission were
disseminated by the Iranian militants and media outlets.
Q. Explain the inviolability of diplomatic agents.

A. The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of
arrest or detention (VCDR, art. 29). Note that inviolability is distinct from immunity from
criminal jurisdiction. In conjunction, the private residence of a diplomatic agent is likewise
inviolable, as are the agent’s papers, correspondence, and property (VCDR, art. 30).
Q. What is the rule on immunity of diplomatic agents from criminal jurisdiction?

A. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State
[VCDR, art. 31(1)]. As a recourse, a diplomatic agent guilty of serious or persistent breaches
of the law may be declared persona non grata but s/he remains to be immune from
prosecution while in post, irrespective of the character of the crime or its relation to the
function or work of the mission.
Q. When can a receiving State declare a diplomat as a ‘persona non grata’?

A. Any time and for any reason. The receiving State may at any time and without having to
explain its decision, notify the sending State that the head of the mission or any member of
the diplomatic staff of the mission is persona non grata or that any other member of the staff
of the mission is ‘not acceptable’. (VCLT, art. 9)
Q. What is the rule on immunity of diplomatic agents from civil and administrative
jurisdiction?
A. A diplomatic agent is immune from local civil and administrative jurisdiction, except in the
case of:
a) A real action relating to private immovable property in the territory of the receiving
State (exception to the exception: if the property is held on behalf of the sending State
for the purposes of the mission);
b) An action relating to succession in which the agent is involved as executor,
administrator, heir, or legatee in his/her capacity as a private individual; and
c) Any professional or commercial activity by the diplomatic agent outside his/her
official duties. [VCDR, art. 31(1)]
PAGE | 8

TABLE 1
P RIVILEGES AND IMMUNITIES ACCORDED TO PERSONS UNDER THE V IENNA CONVENTION ON D IPLOMATIC R ELATIONS (VCDR)
P ROVISION D IPLOMATIC A GENTS H OUSEHOLD A DMINISTRATIVE H OUSEHOLD S ERVICE PRIVATE

FAMILY M EMBERS AND TECHNICAL FAMILY STAFF SERVANTS OF
OF A D IPLOMATIC STAFF MEMBERS OF MEMBERS OF THE
A GENT ADMINISTRATI MISSION
VE AND
TECHNICAL
STAFF
DEFINITION Head of a mission or a Not defined by Staff members Not defined Staff Persons who
member of the mission the VCDR. employed in the by members are in the
staff having diplomatic administrative the VCDR. in the domestic
rank. VCDR, art. and technical domestic service
1(d),(e). service of the service of a member of
mission. VCDR, of the the mission
art. 1(f). mission. and who are
VCDR, art. not employees
1(g). of the sending
State. VCDR,
art. 1(h).
CRIMINAL Immune from Same as Immune only for Same as Immune with No immunity
JURISDICTION jurisdiction. VCDR, art. diplomatic acts performed administrative respect to under the
31(1). agents. in and acts VCDR.
VCDR, art. the course of technical performed in Jurisdiction
37(1). official staff. the course of to be
duties. VCDR, art. duties. asserted so as
VCDR, art. 37(2). VCDR, art. not to interfere
37(2). 37(3). unduly with
the functions
of the mission.
VCDR, art.
37(4).
PAGE | 9

VE AND
TECHNICAL
STAFF
CIVIL Immune except for (a) Same as Immune with Same as Same as No immunity
JURISDICTION certain actions relating diplomatic respect to acts administrative administrativ under the
to real property, (b) agents. performed in the and e Convention.
estate matters in VCDR, art. course of official technical and technical Jurisdiction
which the agent is 37(1); duties. VCDR, staff. staff. VCDR, to be asserted
acting as private art. 37(2). VCDR, art. art. 37(3); so as not to
party, and (c) actions 37(2); interfere
relating to private unduly with the
professional or functions
commercial activities. of the mission.
VCDR, art. 31(1). VCDR, art.
37(4).
JUDICIAL Immune from Same as Generally Same as Immune with No immunity
PROCESS obligation to give diplomatic immune to same administrative respect to under the
evidence. Immune agents. degree as and acts VCDR.
from execution of VCDR, art. diplomatic technical performed in Jurisdiction to
judgments except in 37(1). agents, except staff. the course of be asserted so
non-immune civil immune from the VCDR, art. duties. as not to
action where execution execution in a 37(2). VCDR, art. interfere
will not infringe on the civil judgment 37(3). unduly with the
inviolability of his only if it functions of the
person or residence. concerns acts mission. VCDR,
VCDR, art. 31(2), (3). performed in the art. 37(4).
Private residence course of official
deemed inviolable to duties. VCDR,
same degree as art. 37(2).
diplomatic mission.
PAGE | 10

VE AND
TECHNICAL
STAFF
VCDR, art. 30.

TAXES Immune other than for Same as Same as Same as Exempt from Same as
(a) indirect taxes in diplomatic diplomatic diplomatic dues and service
the price of agents. agents. agents. taxes on staff.
goods/services; (b) VCDR, art. VCDR, art. VCDR, art. emoluments VCDR, art.
real property 37(1). 37(2). 37(2). received by 37(4).
taxes/fees on private reason of
immovable property, their
unless held on behalf employment.
of sending State; (c) VCDR, art.
estate/inheritance 37(3).
taxes on property
which was not brought
from sending State;
(d) income tax on
private income; (e)
charges for services
rendered; and (f)
court, registration, or
record fees, mortgage
dues and stamp duty,
with respect to non-
mission, immovable
property. VCDR,
art.34.
CUSTOMS Immune from duties Same as Immune only Same as None, except No immunity
on articles for personal diplomatic from duties on administrative to the extent under the
or official use. Exempt articles imported and that customs Convention.
PAGE | 11

VE AND
TECHNICAL
STAFF
from inspection except agents. VCDR, at time of first technical may relate to Jurisdiction to
where there are art. installation. staff. acts be asserted so
serious grounds to 37(1). VCDR, art.37(2). VCDR, art. performed as not to
believe there are 37(2). in the interfere
contraband articles or course of the unduly with the
articles not for duty. VCDR, functions of the
personal or official art. 37(3). mission. VCDR,
use. VCDR, art. 36. art. 37(4).
SOCIAL Exempt with respect to Same as Same as Same as Same as No immunity
SECURITY services rendered for diplomatic diplomatic diplomatic diplomatic under the
the sending State. Not agents. VCDR, agents. VCDR, agents. agents. Convention.
exempt with respect to art. 37(1). art. 37(2). VCDR, art. VCDR, art. Jurisdiction
personal servants who 37(2). 37(3). to be
are U.S. nationals or asserted so as
permanent not to interfere
residents, or who are unduly with
not covered by social the functions
security provisions of of the mission.
the sending State or a VCDR, art.
third State. 37(4).
VCDR, art. 33(1)-(2).
MILITARY / Immune from all Same as Same as Same as No immunity No immunity
PUBLIC public service and diplomatic diplomatic diplomatic in under the
SERVICE military obligations. agents. agents. agents. Convention Convention.
VCDR, art. 35 VCDR, art. VCDR, art. VCDR, art. Jurisdiction
37(1). 37(2). 37(2). to be
asserted so as
not to interfere
PAGE | 12

VE AND
TECHNICAL
STAFF
unduly with
the functions
of the mission.
VCDR, art.
37(4).
IMMIGRATION No specific immunity Same as Same as Same as Same as No immunity.
under the Convention, diplomatic diplomatic administrative administrativ Jurisdiction
but immune generally agents. VCDR, agents, and e to be asserted
from civil and art. with respect to technical and technical so as not to
administrative 37(1). actions taken in staff. staff. VCDR, interfere
jurisdiction under course of official VCDR, art. art. 37(3.) unduly with
VCDR, art. 31. duties. VCDR, 37(2). the functions
art. 37(2). of the mission.
VCDR, art.
37(4).
PAGE | 13

Table 2
P RIVILEGES AND IMMUNITIES ACCORDED TO PERSONS UNDER THE V IENNA CONVENTION ON CONSULAR R ELATIONS (VCCR)
P ROVISION CONSULAR OFFICERS H OUSEHOLD CONSULAR H OUSEHOLD S ERVICE STAFF HONORARY

FAMILY EMPLOYEE FAMILY MEMBERS CONSUL
M EMBERS OF OF CONSULAR
CONSULAR EMPLOYEE
OFFICER
DEFINITION Any person, including Not defined Any person Not defined by Any person Consular
the head of a consular by the VCCR employed in the the VCCR. employed in officer other
post, entrusted in that administrative the domestic than career
capacity with the or technical service of a consular
exercise of consular service of a consular post. officer of the
functions. VCCR, art. consular post. VCCR, art. sending State.
1(d). VCCR, art. 1(e). 1(f). VCCR, art.
1(2).
CRIMINAL Immune from No immunity Immune from No immunity No immunity No immunity
JURISDICTION jurisdiction with under the jurisdiction in under the under the from arrest,
respect to acts VCCR. respect to acts VCCR. VCCR. detention, or
performed in the performed in the prosecution,
exercise of consular exercise of but
functions. Immune consular proceedings
from arrest and functions. are to be
detention pending VCCR, art. 43. carried out
trial, except in case of expeditiously
grave crime pursuant with as little
to a decision by a interference
judicial authority. with official
Criminal proceedings functions as
to be conducted so as circumstances
not to interfere unduly will allow.
with consular VCCR, art. 63.
functions. VCCR, arts.
41,43.
PAGE | 14

CONSULAR EMPLOYEE
OFFICER
CIVIL Immune from Civil No immunity Same as No immunity No immunity Same as

JURISDICTION and administrative under the consular under the under the consular
jurisdiction with VCCR. officers. VCCR. VCCR. officers.
respect to acts VCCR, art. 43. VCCR,
performed in exercise art. 58(2).
of functions except (1)
to degree that an
action relates to
private contract other
than on behalf of
sending State or (2)
actions by 3rd parties
for vehicle-caused
damage. VCCR, art.
43.
JUDICIAL Immune from No immunity Immune only No immunity As members Same as
PROCESS contempt for failure to under the with respect to under the VCCR. of consular consular
give evidence VCCR giving evidence post, have employees.
whenever called upon concerning same degree VCCR,
to do so. Evidence, official functions of immunity as art.58(2).
when provided, may or documents, or consular
be given so as not to concerning employees.
interfere with consular expert testimony VCCR, arts.
functions. VCCR, art. on sending 1(g), 44.
44. State’s law.
VCCR, art. 44.
TAXES Immune from taxes Same as Same as Same as Exempt from Exempt from
other than (a) indirect consular consular officers. consular dues and all
taxes in the price of officers. VCCR, art. officers. VCCR, taxes dues and
goods/services; (b) VCCR, art. art. 49(1). taxes
PAGE | 15

CONSULAR EMPLOYEE
OFFICER
real property 49(1). 49(1). on wages on

taxes/fees on private received remuneration
immovable property, for their and
unless held for services. emoluments
sending State; (c) VCCR, received for
inheritance and estate art 49(2). performing
taxes on property not consular
brought from sending functions.
State;(d) income tax VCCR, art. 66.
on private U.S.
income; (e) charges
on specific
services; and (f)
court, registration, or
record fees, mortgage
dues and stamp duties
on non-mission
property. VCDR, art.
34.
CUSTOMS Immune from duties Same as Generally the No immunity No immunity Immune only
on articles for consular Same as under VCCR. under VCCR. with respect
personal or official officers. consular officers to customs
use. Exempt from VCCR, with respect to duties on
inspection except art.50(1) articles imported certain
where there are at the time of consular office
serious grounds to fist installation. items. VCCR,
believe there are VCCR, art. art. 62.
contraband articles or 50(2). However,
articles not for no immunity
concerning
PAGE | 16

CONSULAR EMPLOYEE
OFFICER
personal or official personal

use. VCCR, art. 50(1). inspection of
baggage.
SOCIAL Exempt with respect Same as Same as Same as Same as No immunity
SECURITY to services rendered consular consular consular consular provision
for the sending State. officers. officers. officers. officers. VCCR, separate from
Not exempt with VCCR, art. VCCR, art. VCCR, art. art. 48(1). that
respect to personal 48(1). 48(1). 48(1). concerning
servants who are U.S. taxes and
nationals or dues on all
permanent residents, emoluments
or are not covered by and
social security remuneration
provisions of the in
sending State or a respect to
third State. VCCR, art. official
48(1). functions.
VCCR, art. 66.
MILITARY / Immune from Same as Same as Same as Same as Same as
PUBLIC all public service consular consular officers. consular consular consular
SERVICE and military officers. VCCR, art.52. officers. officers. officers.
obligations. VCCR, art. VCCR, art. VCCR, art. VCCR,
VCCR, art. 52. 52. 52. 52. art. 67.
IMMIGRATION Exempt from all laws Same as Exempt from Exempt only to No immunity Exempt from
regarding registration consular registration and same degree as under the registration
of aliens and officials. residency permit principal VCCR. and residency
residency permits. VCCR, requirements if consular permit
VCCR, art. 46. art. 46. permanent employee. requirements,
employee of VCCR, art. 46. unless also
PAGE | 17

CONSULAR EMPLOYEE
OFFICER
sending State engaged in

and are not private gainful
engaged in occupation in
private gainful the U.S.
occupation in the VCCR,
United States. art. 65.
VCCR, art. 46.
PAGE | 18

VI. TREATIES
Q. What are the functions of treaties?

A. They are sources of international law, they serve as the charter of international organizations,
they are used to transfer territory, regulate commercial relations, settle disputes, protect human
rights, guarantee investments, etc. But a treaty is not the only means by which a state can enter
into a legal obligation.
Q. What are the kinds of treaties?

A. (1) Multilateral treaties are those that are open to all states of the world. They create norms
which are the basis for a general rule of law. They are either codification treaties or “law-making
treaties” or they may have the character of both.
(2) Another category includes treaties that create a collaborative mechanism. These can be of
universal scope or regional. They operate through the organs of different states.
(3) The largest category of treaties are bilateral treaties. Many of these are in the nature of
contractual agreements which create shared expectations such as trade agreements of various
forms. They are sometimes called “contract treaties”.
Q. What are law-making treaties?

A. Law-making treaties create legal obligations the observance of which does not dissolve the treaty
obligation. According to McNair, such treaties are in principle binding only on parties, but the
number of parties, the explicit acceptance of rules of law, and in some cases, the declaratory nature
of the provisions produce a strong law-creating effect at least as great as the general practice
considered sufficient to support a customary rule.
Q. What is the fundamental principle of treaty law? (Bar 2011)

A. Pacta sunt servanda - Treaties are binding upon the parties to them and must be performed in
good faith. This principle is reaffirmed in article 26 of the VCLT and is now customary in nature.
Q. Can treaties give rise to customary international law?

A. It can. While treaties are generally binding only on the parties, the number of the contracting
parties and the generality of the acceptance of specific rules created by the treaty can have the
effect of creating a universal law in the same way that general practice suffices to create customary
law.
A. 1969 VIENNA CONVENTION ON THE LAW OF TREATIES (VCLT)
Q. What is the scope of the VCLT?

A. It covers treaties between and among states. It excludes agreements involving international
organizations. It also does not cover agreements between states which are to be governed by
municipal law.
Q. Do oral treaties come under the provisions of the Vienna Convention on the Law of
treaties?
A. No. While no particular form is prescribed, the definition found in Article 2 of the VCLT explicitly
states that a treaty is an agreement in written form. There are no specific requirements of form in
PAGE | 19

international law for the existence of a treaty, although it is essential that the parties intend to
create legal relations as between themselves by means of their agreement.
Q. Does the 1969 VCLT constitute customary law?

A. The 1969 Vienna Convention on the Law of Treaties partly reflects customary law. Certain
provisions of the Convention may be regarded as reflective of customary international law, such as
the rules on interpretation, material breach and fundamental change of circumstances. Others may
not be so regarded, and constitute principles binding only upon state parties.
Q. What are the steps in the creation of treaties?

A. i) Negotiation, ii) Authentication of text, iii) Consent to be bound, iv) Entry into force.
Q. What do negotiations involve?

A. Negotiation is done through foreign ministries. Larger multilateral treaties are negotiated in
diplomatic conferences. Negotiators must possess powers to negotiate. An act relating to the
conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed
by his state.
Q. Who has powers to negotiate?

A. A person is considered as a representative of a State if he (a) produces appropriate full powers
or (b) it appears from the practice of the States concerned or from other circumstances that their
intention was to consider that person as representing the State. [VCLT, art. 7(1)]
Q. Who are considered as representatives of a State?

A. The following are considered as representing their State, without having to produce full powers:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the
purpose of adopting the text of a treaty between the accrediting State and the State to which they
are accredited; (c) representatives accredited by State to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a treaty in
that conference, organization or organ. [VCLT, art. 7(2)]
Q. When do negotiations end?

A. It concludes with the signing of the document. Article 9 provides that the adoption of the text of
a treaty at an international conference takes place by the vote of two-thirds of the States present
and voting, unless by the same majority they shall decide to apply a different rule. The signatures
can serve as authentication of the document.
Q. How does a State express its consent to be bound?

A. Article 11 provides the various ways by which consent to be bound is expressed. These are: by
signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.
Q. How does the Philippines ratify a treaty?

A. Article VII, Section 21 of the Constitution provides that no treaty or international agreement shall
be valid and effective unless concurred in by at least 2/3 of all the Members of the Senate.
Q. What are reservations?

A. Art. 2 of the VCLT defines reservation as a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
PAGE | 20

purports to exclude or to modify the legal effect of certain provisions of the treaty in their application
to that State.
Q. Must a reservation be consented to by all parties for it to be effective?

A. According to the Reservations to the Genocide Convention (ICJ Reports, 1951), a State which
has made and maintained a reservation which has been objected to by one or more parties to the
Convention but not by others, can be regarded as a party to the Convention if the reservation is
compatible with the object and purpose of the Convention. The Court added that compatibility could
be decided by States individually since if a party to the Convention objects to a reservation which
it considers incompatible with the object and purpose of the Convention, it can consider that the
reserving state is not a party to the Convention. Under this view, it is possible for different legal
relationships to arise among parties to the same treaty.
Q. When do treaties enter into force?

A. Treaties enter into force on the date agreed upon by the parties. Where no date is indicated, the
treaty enters into force once consent has been given. Multilateral treaties generally contain a
provision which says how many states have to accept the treaty before it can come into force.
Q. How are treaties interpreted?

A. Treaties must be interpreted in good faith in light with its object and purpose. They must be
interpreted according to the ordinary meaning of the words. Where there are ambiguities in the
meaning of a treaty, resort may be made to supplementary sources. (VCLT, Art 31) Thus, the
purpose of the treaty, and the special meaning given by the parties may be appreciated. In case
there is conflict among “official texts”, the language that is agreed by the parties as authoritative is
followed.
Q. What are the grounds that would make a treaty invalid?

A. Error of fact, fraud, corruption of a representative of a State, coercion of a State by the threat or
use of force. Moreover, a violation of a jus cogens norm invalidates a treaty.
Q. What is the difference between amendment and modification of treaties?

A. Amendment is a formal revision done with the participation, at least in its initial stage, by all the
parties to the treaty. Modification involves only some of the parties.
Q. How are treaties terminated?

A. The following are ways in which a treaty may be terminated: (1) expiration of a period (2) consent
of all parties (3) accomplishment of the purpose (4) material breach (repudiation not sanctioned by
the present Convention) (5) supervening impossibility of performance (6) fundamental change of
circumstances (rebus sic stantibus) (7) emergence of a new peremptory norm of general
international law.
Q. When one state ceases to exist and is succeeded by another on the same territory, is
the new state bound by the commitments made by its predecessor?
A. No. The “clean slate” rule applies. Article 16 of the 1978 Vienna Convention on the Succession of
States with Respect to Treaties state that: “A newly independent State is not bound to maintain in
force, or to become a party to, any treaty by reason only of the fact that at the date of the succession
of States the treaty was in force in respect of the territory to which the succession of States relates.”
PAGE | 21

Q. Is there an exception to the “clean slate” rule?
A. Yes. (1) a new state may agree to be bound by the treaties made by its predecessor, and (2) the
rule does not apply to treaties affecting boundary regimes.
VII. NATIONALITY & STATELESSNESS
Q. What is nationality?
A. According to Oppenheim, the nationality of an individual is his quality of being a subject of a
certain State and therefore its citizen. It is a politico-legal term denoting membership of a State.
According to the Lynch Claim it is a legal relationship that involves rights and corresponding duties
upon both the citizen and the State.
Q. How is nationality acquired?

A. There are two modes: Original Acquisition and Derivative Acquisition (Naturalization). Under the
first mode, nationality is based either on jus soli (nationality by birth in the territory of the State)
or jus sanguinis (nationality by descent). Under the second, naturalization is dependent on the laws
of the country regarding the effect of nationality. Oppenheim states that this may include acquisition
of nationality by reason of marriage, legitimation, option, acquisition of domicile, entry into State
service, and finally grant on application.
Q. Distinguish nationality from citizenship.

A. Both emphasize different aspects of the same notion: State membership. “Nationality” stresses
the international, “citizenship” the national, municipal aspect. Every citizen is a national, but not
every national is necessarily a citizen of the State concerned.
Q. Are States under an obligation under international law to accord nationality?

A. No. However, Art. 15 of the United Nations Declaration of Human Rights recognizes the right of
every individual to a nationality. Toward this end, the Economic and Social Council through
Resolution 319 B III (XI), resolved that States should examine applications for naturalization
sympathetically, and re-examine their nationality laws with a view to reducing the number of cases
of statelessness. Article 32 of the Convention Relating to the Status of Stateless Person (CRSSP)
states that as far as possible, naturalization of stateless persons should be facilitated.
Q. Who are Stateless persons? (Bar 1995)

A. A Stateless person is a person who is not considered as a national by any State under the
operation of its law. (CRSSP, Art. 1)
Q. What is the difference between de jure stateless and de facto stateless persons?
A. De jure stateless persons are those who have not received nationality automatically or through
an individual decision under the operation of any State’s laws, while de facto stateless persons are
those who cannot establish their nationality and does not enjoy national protection.
Q. What are the consequences of Statelessness? (Bar 1995)

It results in the inability to enjoy the rights and freedoms afforded by the law such as the right to
work, own property, to access health care, to education, and the ability to travel, including the vital
right to leave and return. It can also lead to the loss of diplomatic protection.
Q. What then are the rights of Stateless persons? (Bar 1995)

A. He shall be accorded the same treatment granted to a national of the country of his habitual
residence with respect to artistic rights and industrial property, free access to courts, rationing,
PAGE | 22

elementary education, and public relief and assistance. He shall also be issued identity papers in
their territory when he does not possess a valid travel document.
Q. Can a State lawfully expel a stateless person from its territory?

A. Generally no, unless national security or public order should require it. The expulsion shall be in
accordance with the due process of law, subject to the requirements on national security. (CRSSP,
Art. 31)
Q. Can a State detain stateless persons who do not have a legal stay?
A. Normally, no. As advised by the UNHCR, “detention should be avoided and only be resorted to if
clearly based on national legislation that conforms to international human rights law.” Detention
must be a last resort measure. For those instances where detention is necessary, reasonableness
and proportionality to the objectives to be achieved must be substantially evident.
VIII. STATE RESPONSIBILITY
Q. What is the doctrine of State responsibility?

A. Whenever one State commits an internationally wrongful act against another State, international
responsibility is established between the two. A breach of an international obligation gives rise to a
requirement for reparation.
Q. What are the essential characteristics of State responsibility?

A. (1) the existence of an international legal obligation in force as between two particular states;
and (2) that there has occurred an act or omission which violates that obligation and which is
imputable to the state responsible, and finally, that loss or damage has resulted from the unlawful
act or omission.
Q. When will the international responsibility of a State arise?

A. In Phosphates in Morocco, the Permanent Court of International Justice (PCIJ) declared that when
a State commits an internationally wrongful act against another State, international responsibility
is established immediately as between the two States.
Q. What is the coverage of international responsibility?

A. According to MHQP James Crawford, international responsibility covers relations which arise
under international law from the internationally wrongful act of a State whether such relations are
limited to the wrongdoing State and one injured State or whether they also extend to other States
or subjects of international law.
Q. When is there an internationally wrongful act?

A. According to Art. 2 of the Articles on State Responsibility (AOSR), two elements are required to
establish the existence of an internationally wrongful act of the state. First, the conduct in question
must be attributable to the state under international law. Second, for responsibility to attach to the
act of the state, the conduct must constitute a breach of an international legal obligation in force
for that state at that time.
Q. What are the consequences of an internationally wrongful act?

A. According to the Chorzow Factory Case, aside from the obligation of cessation and assurances or
guarantees of non-repetition, the consequence of a commission of an internationally wrongful act
involves an obligation to make reparation in an adequate form. Reparation must, so far as possible,
PAGE | 23

wipe out all the consequences of the illegal act and re-establish the situation which would have
existed if the wrongful act had not been committed.
Q. Is the characterization of a State’s conduct as ‘internationally wrongful’ affected by

that State’s internal law?
A. No. According to Art. 3 of the AOSR, the characterization of an act of a State as internationally
wrongful is governed by international law. Such characterization is not affected by the
characterization of the same act as lawful by the State’s internal law.
Q. What is a State organ?

A. A State organ includes entities exercising legislative, executive, judicial or any other functions,
whatever position it holds in the organization of a State, and whatever its character as an organ of
the central government or of a territorial unit of the State. It also includes any person or entity
which has that status in accordance with the internal law of the State. (AOSR, Art. 4)
Q. Are all acts of a State organ attributable to the State?

A. No. However, responsibility may only be excluded in cases where the act had no connection with
the official function and constituted a purely private act. Ultra vires acts of an organ are
nevertheless considered as an act of the State.
Q. Can the conduct of non-State organs exercising governmental functions be attributable

to the State?
A. Yes. According to Art. 5 of the AOSR, the conduct of any person or entity which is not an organ
of a State but which is empowered by the law of that State to exercise elements of governmental
authority shall be considered an act of the State under international law, provided the person or
entity is acting in that capacity in the particular instance.
Q. Can the acts of State organs or entities in excess of their authority or contravention of
instructions be attributable to the State?
A. Yes. It is clear from Art. 7 of the AOSR that the conduct of an organ of a State or of a person or
entity empowered to exercise elements of the governmental authority shall be considered an act of
the State under international law if the organ, person or entity acts in that capacity, even if it
exceeds its authority or contravenes instructions.
Q. Is a conduct directed or controlled by the State attributable to the State?

A. Yes. The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or under
the direction and control of that State in carrying out the conduct.
Q. What conduct can be attributable to the State in the absence or default of official
authorities?
A. According to Art. 9 of the AOSR, the conduct of a person or group of persons shall be considered
an act of a State under international law if the person or group of persons is in fact exercising
elements of the governmental authority in the absence or default of the official authorities in
circumstances such as to call for the exercise of those elements of authority.
Q. To whom shall the conduct of an insurrectional movement be attributed?

A. It depends. If the movement becomes the new government of a State, then the conduct of the
insurrectional movement shall be considered as an act of that State under international law. If the
insurrectional movement succeeds in establishing a new State in part of the territory of the pre-
PAGE | 24

existing State, then its conduct shall be considered as an act of the new State under international
law.
Q. Can a State subsequently ratify the acts of a private person or entity?

A. Yes. In such a case, according to Art. 11 of the AOSR, the conduct which is not attributable to a
State shall nevertheless be considered an act of that State under international law if and to the
extent that the State acknowledges and adopts the conduct in question.
Q. When is there breach of an international obligation?

A. According to Art. 12 of the AOSR, there is a breach of an international obligation by a State when
an act of that State is not in conformity with what is required of it by that obligation regardless of
its origin or character.
Q. How can consent preclude the wrongfulness of an act?

A. According to Art. 20 of the AOSR, consent by a State to particular conduct by another State
precludes the wrongfulness of that act in relation to the consenting State, provided the consent is
valid and to the extent that the conduct remains within the limits of the consent given.
Q. Can a State invoke self-defense?

A. Yes. According to Art. 21 of the AOSR, the wrongfulness of an act of a State is precluded if the
act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United
Nations.
Q. What is a countermeasure?
A. According to the Gabcikovo-Nagymaros Project case, a countermeasure is a conduct of a State
in response to a previous international wrongful act of another State and directed against that State.
Q. What are the elements of force majeure?

A. Force majeure may only be invoked if three elements are met: first, the act in question must be
brought about by an irresistible force or an unforeseen event; second, such should be beyond the
control of the State concerned; and third, such makes it materially impossible in the circumstances
for the State to perform the obligation.
Q. When is there a state of necessity?

A. There is necessity where the only way a State can safeguard an essential interest threatened by
a grave and imminent peril is, for the time being, not to perform some other international obligation
of lesser weight or urgency.
Q. When can state of necessity be invoked?

A. According to Art. 25 of the AOSR, necessity may be invoked if the act is: first, the only means
for the State to safeguard an essential interest against a grave and imminent peril; and second,
such does not seriously impair an interest of the State or States towards which the obligation exists,
or of the international community as a whole.
Q. What are the instances wherein a State cannot invoke necessity?

A. According to Art. 25 of the AOSR, a State cannot invoke necessity if the international obligation
in question excludes the possibility of necessity or if the State has contributed to the situation of
necessity.
Q. What are the different forms of reparation?
PAGE | 25

A. According to Art. 34 of the AOSR, full reparation for injury caused by an internationally wrongful
act shall take the form of restitution, compensation and satisfaction, either singly or in combination.
Q. Can the Responsible State rely on the provisions of its internal law?
A. No. According to Art. 32 of the AOSR, a State cannot rely on the provisions of its internal law as
justification for failure to comply with its obligations. This is an affirmation of Article 27 of the VCLT.
Q. Can there be an award of interest in international cases?

A. Yes. According to Art. 38 of the AOSR, interest on any principal sum shall be payable when
necessary in order to ensure full reparation. Interest runs from the date when the principal sum
should have been paid until the date the obligation to pay is fulfilled.
Q. What is diplomatic protection?

A. A state is under a duty to protect its nationals and it may take up their claims against other
states. Diplomatic protection includes, in a broader sense, consular action, negotiation, mediation,
judicial and arbitral proceedings, reprisals, a retort, severance of diplomatic relations, and economic
pressures. But there is under international law, no obligation for states to provide diplomatic
protection for their nationals abroad, although it can be said that nationals have a right to request
their government to consider diplomatic protection and that government is under a duty to consider
that request rationally. In addition, once a state does this, the claim then becomes that of the state.
Q. What is the principle of exhaustion of local remedies?

A. Customary international law provides that before international proceedings are instituted or
claims or representations made, the remedies provided by the local state should have been
exhausted. This rule applies only to cases founded on diplomatic protection or on injury to aliens
IX. JURISDICTION OF STATES
Q. What is jurisdiction?
A. It concerns the power of the state under international law to regulate or otherwise impact upon
people, property and circumstances and reflects the basic principles of state sovereignty, equality
of states and non-interference in domestic affairs. It may be achieved by means of legislative,
executive or judicial action. Jurisdiction, although primarily territorial, may be based on other
grounds; for example, nationality.
Principles of Jurisdiction:
A. TERRITORIALITY P RINCIPLE - A state has absolute, but not necessarily exclusive, power
to prescribe, adjudicate and enforce rules for conduct that occurs within its territory.
i. Effective control must be established. (Las Palmas)
ii. Effects doctrine - A state has jurisdiction over acts occurring outside its territory
but having effects within it. (Lotus case)
Q. What are the two principles of “Effects doctrine”?

A. Subjective territorial principle - a state has jurisdiction to prosecute and punish for crime
commenced within the state but completed or consummated abroad.
Objective territorial principle - a state has jurisdiction to prosecute and punish for crime
commenced without the state but consummated within its
PAGE | 26

territory  (Trail Smelter Arbitration)
Q. What are the rules on boundaries where states are not islands but parts of a larger land mass?
A. According to the Third Restatement:
1. The boundary separating the land areas of two states is determined by acts of the states
expressing their consent to its location.
2. Unless a consent to a different rule has been expressed,
(a) when the boundary between two states is a navigable river, its location is the middle of
the channel of navigation (Thalweg doctrine),
(b) when the boundary between two states is a non- navigable river or a lake, its location is
the middle of the river or lake.
Q. Explain the French and the English Rule over questions of jurisdiction over foreign
vessels in the Philippines.
A. French Rule – crimes committed abroad a foreign merchant vessel should not be prosecuted in
the courts of the country within whose territorial jurisdiction they were committed unless their
commission affects the peace and security of the territory
English Rule – crimes perpetrated under such circumstances are in general triable in the courts
of the country within whose territory they were committed. The Philippines adheres to this rule.
B. N ATIONALITY P RINCIPLE - Every state has jurisdiction over its nationals, even when those
nationals are outside the state. Example: X is a US Citizen living in France, and he failed
to respond to a subpoena served by requiring him to be a witness in behalf of the US.
By this principle, X can be held in contempt because the US retained its authority over
X. (Blackmer v. US)
Q. What is the doctrine on effective nationality link?

A. Espoused in the Nottebohm Case, this doctrine is used to determine which of the two states of
which a person is a national will be recognized as having the right to give diplomatic protection to
the holder of dual nationality. Nottebohm states that it is a legal bond having as its basis a social
fact of attachment, a genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties. Shaw provides that it was a legal manifestation of the link
between the person and the state granting nationality and recognition that the person was more
closely connected with that state than with any other.
Q. Discuss the jurisdiction of a state over corporations and maritime vessels under the nationality
principle
A. As to corporations, a state has jurisdiction over corporations organized under its laws. Many
states assert jurisdiction over corporations whose principal place of business or registered office
is located in their territories. States have also sought to regulate corporations organized or having
their principal place of business abroad when these corporations are owned or controlled by
nationals. This last is controversial. More controversial still are multi-national corporations which
register various addresses for different purposes.
As to maritime vessels, state has jurisdiction over vessels flying its flag (Lotus case) Each state
determines requirements for registration. But flags of convenience might be challenged on the
ground of lack of sufficient link. The same principle is generally applicable to aircraft and
spacecraft.
PAGE | 27

C. P ROTECTIVE P RINCIPLE - This principle provides that states may exercise jurisdiction over
aliens who have committed an act abroad which is deemed prejudicial to the security of
the particular state concerned. Examples: Plots to overthrow the government, forging
its currency, plotting to break its immigration regulations.
D. U NIVERSALITY P RINCIPLE - This recognizes that certain activities, universally dangerous

to states and their subjects require authority in all community members to punish such
acts wherever they may occur, even absent a link between the state and the parties or
the acts in question. Examples: Genocide, Crimes against Humanity, War Crimes, Piracy,
Terrorism.
E. P ASSIVE P ERSONALITY - It asserts that a state may apply law – particularly criminal law
– to an act committed outside its territory by a person not its national where the victim
of the act was its national. The principle is more accepted when applied to terrorist and
other organized attacks on a state’s national by reason of their nationality, or to
assassination of a state’s diplomatic representatives or other officials. Example: the US
Court has jurisdiction over a criminal proceeding against the several Arab men who
hijacked a Jordanian airline on the basis that some of the nationals taken hostage were
Americans. (US vs. Fawiz-Yunis)
F. CONFLICTS OF JURISDICTION – Since there are various accepted principles for assuming
jurisdiction, more than one state may have a valid claim to jurisdiction. In order to
develop more sophisticated modes of resolving conflicts of jurisdiction, U.S. courts
developed three modes: “The balancing test”, “International comity”, and “forum non
conveniens”.
Q. What are the principles governing conflicts of jurisdiction?

A. There are different modes to deal with such issue, such as the balancing test, international
comity, and forum non conveniens.
Q. What is the balancing test?

A. If the answer is yes to all the following questions, the Court will have jurisdiction:
a. Was there an actual or intended effect on a state’s foreign commerce?
b. Is the effect sufficiently large to present a cognizable injury to the plaintiffs, and, therefore,
a violation of the anti-trust law?
c. Are the interests of the state sufficiently strong, vis-à-vis those of other nations, to justify an
assertion of extraordinary authority? (Timberlane Lumber Co. v. Bank of America)
Q. What is ‘international Comity’?

A. Even when a state has basis to exercise jurisdiction, it will refrain from doing so if its exercise
will be unreasonable.
Q. What is ‘forum non conveniens’?

A. The application is discretionary with the court. If in the whole circumstances of the case it be
discovered that there is real unfairness to one of the suitors in permitting the choice of a forum
which is not the natural or proper forum, either on the ground of convenience of trial or the residence
or domicile of parties or of its being the locus contractus or locus solutionis. (Piper Aircraft Co. v.
Reyno)
PAGE | 28

X. TREATMENT OF ALIENS
Q. Is there an obligation to admit aliens?

A. As an aspect of sovereignty, no state is obliged to admit aliens into its territory unless a treaty
requires it.
Q. What is Extradition? (Bar 2012)

A. The legal process by which a person charged or convicted of a criminal offense is surrendered
by one State to another State. It is a process generally governed by treaty, and the legal right to
demand extradition and the correlative duty to surrender a fugitive exist only when governed by
treaty.
Q. Can persons accused for religious and political offenses be extradited?

A. The character of these offenses are not extraditable. This is known as the ‘political offence
exception’ which is often provided by domestic law and extradition treaties.
A. EXTRADITION
i. Fundamental Principles
1. Principle of dual criminality – an offense is extraditable only when punished
in both the requesting and requested State
2. Principle of double jeopardy or non bis in idem – a person should not be tried
or punished twice for the same offense
3. Principle of specialty – the extradited person, without the consent of the
requested State, cannot be convicted for other criminal offenses than that
expressly shown in the request for extradition
ii. Procedure
1. Requesting State submits an extradition request, along with necessary
supporting documents, to the Secretary of Foreign Affairs.
2. If the request complies with the requirements provided for by law and the
relevant treaty, these are forwarded to the Secretary of Justice, who shall
designate an attorney to handle the case.
3. Once all the supporting documents are in order, the DOJ attorney will prepare
the extradition petition and file it with the RTC.
4. The judge may issue a warrant of arrest if in the court’s opinion, the
immediate arrest and temporary detention of the accused will best serve the
ends of justice.
5. Summary hearing and decision will be rendered.
6. If extradition is granted, the accused shall be placed at the disposal of the
authorities of the requesting State.
7. Provisional arrest may be granted pending receipt of the request for
extradition, but the period of detention is only 20 days. (P.D. 1069)
Q. What is the rule on Extradition in the Philippines?

A. The right to notice and hearing is not violated when it is denied during the evaluation stage of
an extradition proceeding. An extradition proceeding is sui generis. It is not a criminal proceeding
which will call into operation all the rights of an accused as guaranteed by the Bill of Rights.
Extradition does not involve the determination of the guilt or innocence of an accused. (Sec. of
Justice v. Lantion, 2000)
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Q. Is bail a matter of right in extradition proceedings?
A. As a general rule, bail is NOT a matter of right in extradition proceedings. However, it may be
granted as an exception if:
1. He/she is not a flight risk; and
2. There exist special, humanitarian and compelling circumstances. (Gov’t of the U.S.A v.
Purganan, 2002)
iii. Distinguished from Deportation
Deportation Extradition
Purpose is to expel unwanted Concerned with the transfer of an
immigrants. It has no preference as individual to a specified foreign state
to the destination of the individual. so that he may be prosecuted there.
Only aliens may be deported. Aliens and nationals may be
deported.
Unilateral act of the deporting state. Arises from the request of a foreign
state.
The individual must be deported to a The individual is extradited to a
receiving state. requesting state.

XI. INTERNATIONAL HUMAN RIGHTS LAW
Q. What are Human Rights?

A. Those rights which are inalienable and fundamental which are essential for life as human beings.
These are rights against the State, not private persons.
Q. What are the three generations of human rights?

A. 1st Generation: Civil and Political Rights
2nd Generation: Social and Economic Rights
3rd Generation: Rights such as the right to peace, clean environment, self-determination,
common heritage of mankind, development, minority rights
Q. What are the seven core international human rights conventions under the direct
auspices of the UN?
A. The seven core instruments are the following:
1. The International Convention on the Elimination of All forms of Racial Discrimination (CERD);
2. The International Covenant on Civil and Political Rights (ICCPR);
3. The International Covenant on Economic, Social and Cultural Rights (ICESCR);
4. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
5. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or
Punishment (CAT);
6. The Convention on the Rights of the Child (CRC);
7. The International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families (ICRMW).
Q. Are derogations from the protection of rights allowed under the international human
rights conventions and agreements?
A. Yes, the requirements are:
PAGE | 30

1. There must be a public emergency which threatens the life of the nation;
2. Such public emergency must be officially proclaimed;
3. Derogation is allowed only to the extent strictly required by the exigencies of the situation;
4. The measures taken should not be inconsistent with their other obligations under
International Law; and;
5. The measures may not involve discrimination solely on the ground of race, color, sex,
language, religion or social origin.
Q. What are the non-derogable rights?

A. The right to life; freedom from torture and other inhuman or degrading treatment or punishment;
freedom from slavery; freedom from imprisonment merely for inability to fulfil a contractual
obligation; freedom from post facto legislation and other judicial guarantees; right to recognition
before the law; and freedom of thought, conscience and religion.
Q. What is the role of the International Criminal Court?

Created by the 1998 Rome Statute, the ICC is where certain international crimes are prosecuted
and individual liabilities are determined. The international crimes are limited to the most serious
ones such as genocide, crimes against humanity, war crimes, and crimes of aggression. It is a court
of last resort pursuant to the principle of complementarity which states that a court is not allowed
to act when the local judicial system is able and willing to prosecute.
A. U NIVERSAL D ECLARATION OF H UMAN RIGHTS
Q. What is the Universal Declaration of Human Rights (UDHR)?

A. The UDHR is a “common standard of achievement for all peoples and all nations, to the end that
every individual and every organ of society shall strive by teaching and education to promote and
respect their universal and effective recognition and observance.” It is not a treaty but it serves as
the foundation for other treaties such as the ICESCR and ICCPR which cover the most important
human rights.
Q. What is the philosophy on which it is based?

A. That “all humans are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood.”
B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Q. What is the ICCPR?

A. It is a multilateral treaty for the protection of the first generation human rights. The Covenant
guarantees the following rights:
• Right to Life, liberty and property, and equality
• Torture, ill-treatment and prison conditions
• Freedom of Movement – travel within and outside one’s country; change one’s residence
• Legal Personality, privacy and the family
• Thought, conscience, religion, expression and political freedoms
• Associations and unions
• Minorities
• Self-determination of peoples
Q. What is the difference between a declaration and a covenant?

In a covenant, there is a meeting of the minds of the contracting parties on the specific duties and
obligations they intend to assume, and the agreement that the undertakings must be effectively
PAGE | 31

performed. On the other hand, in a declaration, there is a presumption that something less than full
effectiveness in terms of law is intended. It serves as moral rules rather than a contract, as there
is no juridical tie or vinculum juris.
Q. What are the Optional Protocols to the ICCPR?

A. 1. The 1st Optional Protocol—establishes the Human Rights Committee to receive and consider
communications from individuals claiming to be victims of violations of any of the rights under the
Covenant. But they can only file complaints against those States who have ratified the Protocol.
Entered into force on March 23, 1976. The Philippines has ratified this Protocol already.
2. The 2nd Optional Protocol—aims at the abolition of the death penalty.
Q. Who is a refugee?
A. According to the Refugees Convention, the term refugee shall apply to any person who, owing to
a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his nationality and is unable or,
owing to such fear is unwilling to avail himself of the protection of that country; or who, not having
a nationality and being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it.
Q: What is the right to self-determination?

A: Self-determination covers two important rights: 1. The right freely to determine their political
status and freely pursue their economic, social, and cultural development; and 2. The right for their
own ends, to freely dispose of the natural wealth and resources without prejudice to any obligations
arising out of international cooperation based upon the principle of mutual benefit and international
law.
Q. Explain the right of asylum.

A. It asserts the fact that every State exercises territorial supremacy over all persons on its territory,
whether they are its subjects or aliens, excludes the exercise of power of foreign States over their
nationals in the territory of another State. Thus, a foreign State is provisionally at least, an asylum
for every individual who, being prosecuted at home, crosses its frontier.
Q. What is the principle of non-refoulement?

A. It states that no contracting State shall expel or return a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.
Q. What is a migrant worker?

A. A migrant worker is a person who is to be engaged, is engaged or has been engaged in a
remunerated activity in a State of which he or she is not a national.
C. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
Q. What is the ICESCR?

A. It is a multilateral treaty for the protection of the second generation human rights such as Right
to work, Right to favorable conditions of work, Right to form free trade unions, Right to social
security and insurance, Right to special assistance for families, Right to adequate standard of living,
Right to the highest standard of physical and mental health, Right to education including compulsory
primary education, and the Right to the enjoyment of cultural and scientific benefits and
international contracts which are characterised as social welfare rights. These are reflected in the
PAGE | 32

Philippine Constitution in the Articles pertaining to Social Justice; Family; Education, Science and
Technology, Arts, Culture, and Sports.
Q. What is the principle of progressive realization?

Art. 2 of the ICESCR provides that a state is obligated to undertake an evolving program of activities
to realize those rights which are ‘recognized’ by the Economic Covenant. And that despite limited
resources, the level of effort by the States should increase over time.
Q. What is the effect of the Philippines being a party to these instruments?

A. The country is bound to bring its laws and practices into accord with these international
obligations and not to introduce new laws or practices which would be contrary to these instruments.
In addition to this, States are obligated to cooperate and assist other States to provide and extend
international protection for these economic and social rights.
Q. What are the customary human rights laws?

A. Prohibition of torture, genocide, slavery, and discrimination.
Q. What is Genocide? (Bar 1997)

A. Genocide includes any of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, such as:
1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcible transferring children of the group to another group.
Q. What is torture?
A. Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity.
Q. What is slavery?
A. Slavery is the status or condition of a person over whom any or all of the powers attaching to
the right of ownership are exercised.
Q. What constitutes “discrimination against women”?

A. Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their
marital status, on a basis of equality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field.
XII. INTERNATIONAL HUMANITARIAN LAW & NEUTRALITY
Q. What is International Humanitarian Law?
PAGE | 33

A. International Humanitarian Law (IHL) deals with the means and methods of warfare. It applies
as soon as there is an armed conflict. Thus, it is known as the Laws of War. It sets certain bounds
on the use of force against an adversary. It determines both the relationship of the parties to a
conflict with one another and their relationship with neutral states. Certain provisions of
international humanitarian law are also applicable in the relationship between the state and its own
citizens.
Q. What are the sources of IHL?

A. 1. The Four Geneva Conventions of 1949.
2. The Three Additional Protocols to the Geneva Conventions of 1977.
3. The Hague Conventions.
4. Customary IHL.
Q. What is the “Martens Clause”?

A. The Martens Clause implements rules of IHL applicable in armed conflict that are so fundamental
to the respect of the human person and elementary considerations of humanity. It is an effective
means of addressing the rapid evolution of military technology. It states that “the inhabitants and
the belligerents remain under the protection and the rule of the principles of the law of nations, as
they result from the usages established among civilised peoples from the laws of humanity and the
dictates of the public conscience’.”
Q. What is an “armed attack”?

A. In Nicaragua v. US, the ICJ held that armed attacks included not only the actions of regular
armed forces across international borders, but also the sending by or on behalf of the State of
armed groups, bands, irregulars or mercenaries, which carry out acts of actual armed attack
conducted by regular forces or their substantial involvement therein.
A. CATEGORIES OF ARMED CONFLICTS
i. International Armed Conflicts - An international armed conflict exists if one

state uses force of arms against another state. This shall also apply to all cases
of total or partial military occupation, even if this occupation meets with no armed
resistance. The use of military force by individual persons or groups of persons
will not suffice. It is irrelevant whether the parties to the conflict consider
themselves to be at war with each other and how they describe this conflict.
ii. Non-International Armed Conflicts - A non-international armed conflict is a

confrontation between the existing governmental authority and groups of persons
subordinate to this authority and groups of persons subordinate to this authority
or between different groups none of which acts on behalf of the government,
which is carried out by force of arms within national territory and reaches the
magnitude of an armed confrontation or a civil war.
iii. Internationalized Armed Conflicts - A non-international armed conflict

occurring on the territory of a State may become international in case of
intervention of armed forces belonging to, or under overall control of one or more
third State(s). If the authorities did not consent to the intervention and/or the
intervention of the third State(s) is made against the authorities of the State
where the NIAC occurred, whether or not the third State(s) support(s) the rebels,
the conflict is “internationalised”, which means that it becomes an international
armed conflict.
PAGE | 34

iv. War of National Liberation Movements - situations “in which peoples are
fighting against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination, as enshrined in the
Charter of the United Nations and the Declaration on Principles of International
law concerning Friendly Relations and Co-operation among states in accordance
with the Charter of the United Nations.” It is treated as a conflict of an
international character.
Q: Is a formal declaration of war necessary before the application of IHL?

A: No, it is irrelevant whether or not the parties to the conflict consider themselves to be at war
with each other; the application of IHL does not depend on a formal declaration of war.
B. CORE OBLIGATIONS OF STATES IN IHL
Q. What are the core obligations of States in IHL?

A. 1. To engage in limited methods and means of warfare;
2. To differentiate between civilian population and combatants, and work to spare civilian
population and property;
3. To abstain from harming or killing an adversary who surrenders or who can no longer take
part in the fighting; and
4. To abstain from physically or mentally torturing or performing cruel punishments on
adversaries.
C. PRINCIPLES OF IHL
1) TREATMENT OF CIVILIANS (SOURCE: FOURTH G ENEVA CONVENTION, ADDITIONAL PROTOCOL I)
i. Principle of Distinction in the treatment of Civilians – According to Additional

Protocol I, belligerents must first distinguish between civilians (those that do not
take part in hostilities) and combatants (those that take part in hostilities).
ii. Principle of Proportionality in the use of force - The principle of
proportionality states that even if there is a clear military target, it is not possible
to attack it if the risk of civilians, or civilian property, being harmed is larger than
the expected military advantage.
iii. Principle of Necessity – The use of force must be used against a valid military
objective or those which, at the time, offer a definite military advantage if
destroyed, captured, or neutralised.
iv. Prohibition to inflict unnecessary suffering
v. Prohibition to attack those hors de combat (out of combat)
Q. Who is a civilian?
A. Art. 50 (1) of Protocol I defines a civilian as any person who is not a combatant. In case of doubt,
a person is considered a civilian.
Q. When does the Convention come into operation?

A. as soon as there is an outbreak of hostilities or the start of an occupation. It also ends at the
general close of the military operations.
2) TREATMENT OF PRISONERS OF W AR (SOURCE: THIRD G ENEVA CONVENTION)
PAGE | 35

Q. Who are Prisoners of War?
A. Art. 4 of the Third Geneva Convention of 1949 states that it covers the following persons
belonging to one of the following categories, who have fallen into the power of the enemy:
(1) members of the armed forces of a party to the conflict, including militias or volunteer corps that
are part of the armed force; and
(2) members of other militias and volunteer corps, including those of organized resistance
movements, belonging to a party to the conflict provided they:
(a) being commanded by a person responsible for his subordinates;
(b) having a fixed distinctive sign recognizable at a distance;
(c) carrying arms openly;
(d) conducting operations in accordance with the laws and customs of war.
(3) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take
up arms to resist the invading forces, without having had time to form themselves into regular
armed units, provided they carry arms openly and respect the laws and customs of war.
The definition provided by the Third Geneva Convention is supplemented by Art. 45 of Additional
Protocol I of the Geneva Convention which provides that a person who takes part in hostilities and
falls into the power of an adverse party shall be presumed to be a prisoner of war and therefore
protected by the Third Convention.
Q. What are the rights granted to POWs?

A. 1. It is prohibited to treat prisoners of war inhumanely or dishonourably (i.e. cannot display
POWs on television in a degrading manner). (art. 13 of Third Convention)
2. Any discrimination on the grounds of race, nationality, religious belief or political opinions,
or similar criteria is unlawful.
3. Reprisals against POWS are prohibited.
4. Representatives of the protecting power and delegates of the International Committee of the
Red Cross (ICRC) may visit prisoners in their camps at any time and talk to them individually
and without witnesses.
5. A detaining power may transfer POS to another power only if it has satisfied itself of the
willingness and ability of the latter to apply the rules of international law as to the protection
of POWs.
6. It is prohibited to inflict any physical or mental torture, or any form of coercion to secure
information from POWs. They are only bound to divulge their name, date of birth, rank and
serial number. (art. 17 of Third Convention)
7. POWs must be released and repatriated without delay after cessation of hostilities. (art. 118
of Third Convention).
Q. Can POWs be punished or disciplined?

A. POWs are subject to the laws and orders of the state detaining them. (art. 82, Third Convention).
They may be punished for disciplinary offences and tried for offences committed before
capture (war crimes, offences against law of state holding them).
D. LAW ON N EUTRALITY
Q. What is Neutrality?
A. Neutrality is the legal position of a State which remained aloof between two other States or
groups of States while maintaining certain rights towards the belligerents and observing certain
duties prescribed by customary law or by international conventions or treaties.
PAGE | 36

Q. What are neutralized States?
A. Neutralized States are States upon which the status of permanent neutrality in all future wars
was formally imposed by a group of great powers. The act of neutralization generally took the form
of a treaty between the parties and was as a rule accompanied by a guarantee of the independence
and territorial integrity of the neutralized State.
Q. What is the difference between Neutral States and Neutralized States?

A. A neutralized State has a status of permanent neutrality; while a neutral State has a status of
temporary neutrality in time of war between other States.

Q. What is RA 9851?
A. RA 9851 is the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity. RA 9851 adopts the generally accepted principles of international
law, including The Hague Conventions of 1907 and the Geneva Conventions as part of the law of
the nations. By defining and criminalizing international crimes, the Philippines ensures that it can
prosecute war crimes, genocide, and crimes against humanity at the national level.
Q. What are the crimes punishable under RA 9851?

A. (1) War Crimes.
a. In case of an international armed conflict, grave breaches of the Geneva Conventions of
12 August 1949, namely, any of the acts against persons or property protected under
provisions of the relevant Geneva Convention, as enumerated under Sec. 4(a) of RA 9851.
b. In case of a non-international armed conflict, serious violations of common Article 3 to
the four (4) Geneva Conventions of 12 August 1949, any of the acts committed against
persons taking no active part in the hostilities, including member of the armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds, detention
or any other cause, as enumerated under Sec. 4(b) of RA 9851.
c. Other serious violations of the laws and customs applicable in armed conflict, within the
established framework of international law, as enumerated under Sec. 4(c) of RA 9851.
(2) Genocide
Any of the acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious,
social or any other similar stable and permanent group, as enumerated under Sec. 5 of RA
9851
(3) Other Crimes Against Humanity.
Any of the acts when committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack, as enumerated under Sec. 6 of RA
9851

XIII. LAW OF THE SEA
Q. What is the Archipelagic Theory?

A. The Archipelagic Theory considers a group of islands which are so closely interrelated and their
interconnecting waters as one geographical unit. The theory allows an archipelagic State to draw
straight archipelagic baselines joining the outermost points of the outermost islands and drying
reefs of the archipelago. The waters enclosed by the archipelagic baselines shall become archipelagic
waters regardless of their depth or distance from the coast, and within these archipelagic waters,
the archipelagic State may draw closing lines for the delimitation of its internal waters.
Q. Up to where does sovereignty over the sea extend to?

A. Art. 2 of the 1982 Law of the Sea provides that:
PAGE | 37

1. Sovereignty of a coastal State extends, beyond its land territory and internal waters and, in
case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described
as territorial sea
2. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil
3. Sovereignty over the territorial sea is exercised subject to this Convention and to other rules
of international law
Q. What is the regime of islands doctrine?

A. Article 121 of the UNCLOS provides that:
1. An island is a naturally formed area of land, surrounded by water, which is above water at
high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf of an island are determined in accordance with the
provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.”
A. BASELINES
Q. What is a baseline? (Bar 2012)

A. The low water line along the coast as marked on large scale charts officially recognized by the
coastal State. The use of the low water mark is most favorable to the coastal States and shows the
character of the territorial waters as appurtenant to the land territory. (Anglo-Norwegian Fisheries
Case)
Q. What are the different baseline methods?

A. 1. Normal baseline method: Follows the low water line along the coast along its curvatures.
2. Straight baseline method: Traditionally used by archipelagic states, where straight lines
are drawn connecting selected points on the coast without appreciable departure from the general
shape of the coast. Art. 47 of the Convention on the Law of the Sea – the length of such baseline
shall not exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing
any archipelago may exceed that length up to a maximum length of 125 nautical miles.
B. ARCHIPELAGIC STATES
i. Straight Archipelagic Baselines - Straight lines are drawn connecting selected

points on the coast without appreciable departure from the general shape of the
coast.
ii. Archipelagic Waters - Internal waters + waters in between islands as enclosed by
the use of the straight baseline method.
iii. Archipelagic Sea Lanes Passage - An archipelagic state may designate sea lanes
and air routes thereabove, suitable for the continuous and expeditious passage
of foreign ships and aircraft through or over its archipelagic waters and the
adjacent territorial sea.
C. INTERNAL W ATERS
Q. What are internal waters?

A. All waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of the territory.
Q. Is there right of innocent passage?
PAGE | 38

A. No.
Q. What is the right of innocent passage?

A. Passage that is not prejudicial to the peace, good order or security of the coastal State. Coastal
states have the unilateral right to verify the innocent character of passage, and it may take the
necessary steps to prevent passage that it determines to be not innocent.
D. TERRITORIAL SEA
Q. What is the Territorial Sea? (Bar 2015)

A. It is a belt of sea outwards from the baseline and up to 12 nautical miles (nm) beyond.
Q. What if the Territorial Seas of two States overlap?

A. The rule used is the equidistance rule, where the dividing line is the median line equidistant from
the opposite baselines. However, this only applies if there is no historic title or other special
circumstances requiring a different measurement.
Q. What is the extent of sovereignty over the Territorial Sea?

A. The same as sovereignty over its land territory. The sea and the strait are subject to the right
of innocent passage by other states.
Q. Is there a right of innocent passage?

A. Yes.
Q. Distinguish the territorial sea and the internal waters of the Philippines.
A.
Territorial sea Internal waters
Under the UNCLOS, the territorial sea is an Article I of the 1987 Constitution defines the
adjacent belt of sea which may extend up to a internal waters of the Philippines as “the waters
breadth of 12 nautical miles from the baseline around, between, and connecting the islands of
over which the sovereignty of a coastal State the archipelago, regardless of their breadth and
extends. dimensions.”
Under Article 7 of the UNCLOS, waters on the

landward side of the baseline of the territorial
sea form part of the internal waters of the
State.
E. CONTIGUOUS ZONE
Q. What is the Contiguous Zone? (Bar 2015, 2012)

A. An area of water not exceeding 24 nm from the baseline.
Q. What are the rights that can be exercised over the Contiguous Zone? [FISC]
A. A coastal state exercises authority over that area to the extent necessary to prevent
infringement of its fiscal, immigration, sanitation or customs authority over its territorial waters
or territory and to punish such infringement
F. EXCLUSIVE ECONOMIC ZONE
PAGE | 39

Q. What is the Exclusive Economic Zone (“EEZ”)? (Bar 2015, 2013)

A. The waters 200 nm from the baseline. The doctrine of patrimonial seas developed in light of
conservation and management of coastal fisheries. A coastal state has sovereign rights over the
economic resources of the sea, seabed and subsoil—but the right does not affect the right of
navigation and overflight of other states.
Q. What are the two primary obligations for the EEZ?

A. 1. Coastal states must ensure through proper measures that the living resources of the EEZ are
not subject to over-exploitation. There is a duty to maintain and restore populations of harvested
fisheries at levels which produce maximum sustainable yield.
2. Coastal states must promote the objective of optimum utilization of the living resources; if it
cannot utilize or harvest the resources, it must grant access to other states.
Q. What if the EEZs of two States overlap?

A. According to Article 59 of the UNCLOS, the conflict should be resolved on the basis of equity and
in the light of all the relevant circumstances, taking into account the respective importance of the
interests involved to the parties as well as to the international community as a whole.
G. CONTINENTAL SHELF
Q. What is the Continental Shelf? (Bar 2015)

A. This refers to the (1) Seabed and subsoil of the submarine areas adjacent to the coastal state
but beyond the territorial sea, 200 nm from the baselines; or (2) Seabed and subsoil of areas
adjacent to islands.
Q. What are the rights over the Continental Shelf?

A. The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources. These are exclusive.
i. Extended Continental Shelf
Q. What is the Extended Continental Shelf?

A. It is the continental shelf that extends beyond the 200 nautical mile margin. A nation
that wishes to extend its continental shelf beyond the standard 200 nautical miles can
do so only by showing the claimed area is a natural prolongation of the country’s land
territory.
Q. What is the limit of the extended continental shelf?

A. Since a country may not extend its continental shelf past the limits of its continental
margin, the limits on its continental margin serve as the absolute extent to which it may
extend its continental shelf.
H. INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEA (ITLOS)
Q: What is the International Tribunal of the Law of the Sea (ITLOS)?

A: The tribunal created under Annex VI of the UNCLOS to settle maritime disputes between States.
It has jurisdiction over any legal disputes concerning the interpretation or application of the UNCLOS
or over any dispute under a treaty related to the purposes of the UNCLOS. For this reason, parties
to the dispute need not be parties to the UNCLOS.
PAGE | 40

Q. What is the rule on the settlement of disputes under the UNCLOS?

A. Peaceful settlement is compulsory and required by such treaty. If no settlement has been
reached, Article 285 requires submission of the dispute in one of the tribunals/courts clothed with
jurisdiction like the ITLOS, the ICJ or an arbitral tribunal, constituted under the Convention.
Q. In which Court/Tribunal did the Philippines file its maritime claim against China?
A. In the Permanent Court of Arbitration (PCA) which facilitated a Tribunal constituted under Annex
VII of the UNCLOS.
XIV. INTERNATIONAL ENVIRONMENTAL LAW
Q. What is international environmental law?

A. International environmental law comprises those substantive, procedural and institutional rules
of international law which have as their primary objective the protection of the environment.
Q. What are the general principles for International Environmental Law?

A. Note: These are only declarations and do not have the force of law.
1. Sovereignty over natural resources and the responsibility not to cause damage to the
environment of other states or to areas beyond national jurisdiction
A. Stockholm Declaration – A non-binding document established under the 1972 United

Nations Conference on the Human Environment.
P RINCIPLE 21 - States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.
B. Rio Declaration – A non-binding document produced at the 1992 United Nations

Conference on Environment and Development (UNCED) and consists of 27 principles with
an emphasis on sustainable development.
P RINCIPLE 2 - States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own resources pursuant
to their own environmental and developmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the environment
of other States or of areas beyond the limits of national jurisdiction.
2. Sustainable Development - development that meets the needs of the present without
compromising the ability of future generations to meet their own needs.
3. Principle of Preventive Action – the obligation requiring the prevention of damage to the
environment, and otherwise to reduce, limit or control activities which might cause or risk such
damage.
PAGE | 41

4. Precautionary Principle – aims to provide guidance in the development and application of
international environmental law where there is scientific uncertainty. It is reflected in Principle
15 of the Rio Declaration.
P RINCIPLE 15 – In order to protect the environment, the precautionary approach shall be

widely applied by states according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.
5. Polluter-pays Principle – establishes the requirement that the costs of pollution should be
borne by the person responsible for causing the pollution and is reflected in Principle 16 of the
Rio Declaration.
P RINCIPLE 16 – National authorities should endeavor to promote the internalization of

environmental costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the costs of pollution, with due regard
to the public interests, and without distorting international trade and investment.
6. Principle of Common but Differentiated Responsibility – States have a common

responsibility to protect the environment taking into account differing circumstances such as
each state’s contribution to the environmental problem and its ability to prevent, reduce and
control the threat. It is reflected in Principle 7 of the Rio Declaration.
P RINCIPLE 7 – States shall cooperate in a spirit of global partnership to conserve, protect

and restore the health and integrity of the Earth’s ecosystem. In view of the different
contributions to global environmental degradation, states have common but
differentiated responsibilities. The developed countries acknowledge the responsibility
that they bear in the international pursuit of sustainable development in view of the
pressures their societies place on the global environment and of the technologies and
financial resources they command.
XV. CASE DOCTRINES OF PHILIPPINE PIL CASES
1. Bayan v. Zamora (2000): The contention as to “recognition of the other contracting state” of the
treaty means that the contracting party simply accepts or acknowledges it as a treaty. There is no
need to submit the agreement to the US Senate to be considered as recognition by the US of the
binding character of the said treaty.
2. Lim v. Exec. Secretary (2002): The VFA permits the US to engage in “activities” here in the
country, but there is no exact definition of what the activities mean. Art. 31 and 32 of the VCLT
provides that in interpreting international agreements, the general rule is to give its ordinary
meaning in light of the intention of the parties but one may resort to supplementary means. Here,
the SC construed that the term “activities” was deliberately made to give both parties room to
negotiate and it includes the Balikatan exercises being done as including the exercises done in the
Balikatan.
3. Pimentel v. Executive Secretary (2005): The President, being the Head of State, has the sole
authority to negotiate with other states and to enter into treaties. However, this power of the
President is limited by requiring the concurrence of ⅔ of all the members of the Senate for the
validity of the treaty. Nevertheless, the President still has the authority to decide whether to submit
or refuse to ratify a treaty. The steps in treaty-making are as follows: negotiation, signature,
PAGE | 42

ratification, and exchange of instruments of ratification. Here, the Senate’s role is limited only to
giving or withholding its consent to the ratification. The Court cannot enjoin the President of
performing his official duties.
4. Abaya v. Ebdane (2007): The exchange of notes can be a form of executive agreements and is
considered binding even without concurrence by the Senate. SC agreed that pacta sunt servanda
must then be observed and that the award was proper.
5. Pharmaceutical v. DOH (2007): International law can be part of domestic law by transformation
or incorporation. Here, the international instruments cited such as the UN Convention on the Rights
of the Child, ICESCR, and the Convention on the Elimination of all forms of discrimination against
women are only guides for the State to follow. There must first be legislation for the provisions of
the World Health Assembly resolutions to be implemented by the DOH.
6. The Province of North Cotabato v. GRP Peace Panel (2008): The MOA-AD would not amount
to an “international agreement or unilateral declaration” binding on the Philippines under
international law since respondents’ act of “guaranteeing amendments” is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.
7. Tanada v. Angara (2007): The provisions in Art. 2 of the Constitution are not self-executing but
are merely guides for the exercise of judicial review and for the legislature. The constitution also
recognizes the need to do business with the global community. It does not promote an isolationist
policy. And, contrary to the petitioners’ belief, the WTO recognizes the need to protect weak
economies.
8. Magallona et al. vs. Executive Secretary Ermita et al. (2011): As to the matter of reducing
territory, the SC held that the UNCLOS is not a means to acquire or lose territory. It merely marks
out the basepoints along the coasts to serve as notices to the international community of the scope
of our maritime space. As to the second issue, the right of innocent passage is customary in nature
and in observance of international law, no State can validly prohibit innocent passage. Lastly, the
use of the framework to define the “regime of islands” is not inconsistent with the country’s claim
of sovereignty over these areas. Such classification does not diminish the maritime area and it is
pursuant to the basepoints mapped out by previous baseline law (RA 3046). (Bar 2015)
9. Gov’t. of U.S.A. v. Hon. Purganan (2002): Given that extradition proceedings are sui generis
and are not criminal proceedings, they do not call into operation the rights of the accused under the
Bill of Rights. The Constitutional provision on bail only applies when a person has been arrested and
detained for violating Philippine criminal laws and where the presumption of innocence is at issue.
The general rule is that bail is not a matter of right in extradition cases. However, it may be granted
as an exception if a) the defendant can show that he is not a flight risk; b) there are exceptional,
humanitarian, or compelling circumstances.
10. Gov’t. of Hongkong v. Olalia (2007): In light of the modern trends and instruments (UDHR,
ICCPR) in international law highlighting the primacy of human rights, the Court re-examined its
judgment in the Purganan case. Following the ruling in Mejoff v. Director of Prisons wherein bail can
be granted to deportation proceedings, the Court said that there is no reason why it cannot apply
to extradition proceedings which are also administrative in nature and the innocence or guilt of the
person detained is not an issue. However, the Court held that since Munoz has not presented
evidence to show he is a flight risk, they remanded the case to the trial court to determine whether
Munoz can be granted bail on the basis of “clear and convincing evidence.”
PAGE | 43

11. Sanders v. Veridiano (1988): Given the official character of the letters, the petitioners were
being sued as officers of the U.S. Government. The complaint therefore cannot prosper unless the
government sought to be held liable has given its consent to be sued (Art. XVI, Sec 3 of the
Constitution). The doctrine of state immunity applies not only to our own government but also to
foreign states to be subjected to the jurisdiction of our courts. Such application is derived from the
principle of the sovereign equality of states, which wisely admonishes par in parem non habet
imperium. Our adherence to this precept is formally expressed in Art. II, Sec. 2 of our Constitution.
12. United States v. Guinto (1990): The restrictive application of state immunity is proper only when
the proceedings arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. A State may have be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the exercise of its sovereign
functions. The Court finds barbershops subject of the concessions granted by the U.S. Government
are commercial enterprises operated by private persons
13. Republic of Indonesia v. Vinzon (2003): The mere entering into a contract by a foreign State
with a private party cannot be construed as the ultimate test of whether or not it is an act jure
imperii (public acts) or jure gestionis (private acts). In this case, the establishment of a diplomatic
mission is undoubtedly an act jure imperii. Petitioner was acting in pursuit of a sovereign activity in
entering into the Maintenance Agreement. The existence alone of a paragraph in a contract stating
that any legal action arising out of the agreement shall be settled according to the laws of the
Philippines and by a specified court of the Philippines is not necessarily a waiver of sovereign
immunity from suit. Submission by a foreign state to local jurisdiction must be clear and
unequivocal. It must be given explicitly or by necessary implication.
14. Minucher v. CA (1992): The Vienna Convention on Diplomatic Relations lists the classes of heads
of diplomatic missions to include: a) ambassadors or nuncios accredited to the heads of state; b)
envoys, ministers or internuncios accredited to heads of states; and c) charges d’affaires accredited
to the ministers of foreign affairs. Comprising the “staff of the (diplomatic) mission” are the
diplomatic staff, the administrative staff, and the technical and service staff. Even while the VCDR
provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an
understanding that the same be restrictively applied. Only “diplomatic agents,” under the terms of
the Convention, are vested with blanket diplomatic immunity from civil and criminal suits.
Ultimately, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity
is the determination of whether or not he performs duties of diplomatic nature. Scalzo was an
Assistant Attaché of the U.S. diplomatic mission and was accredited as such by the Philippine
Government. Attachés belong to a category of officers in the diplomatic establishment who may be
in charge of its cultural, press, administrative, or financial affairs, but they are not generally
regarded as members of the diplomatic mission. In any case, vesting a person with diplomatic
immunity is a prerogative of the executive branch of the government.
15. Nicolas v. Romulo (2009): The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a foreign military armed forces allowed
to enter our territory and all other accused. The rule in international law is that a foreign armed
forces allowed to enter ones territory is immune from local jurisdiction, except to the extent agreed
upon. Applying the provisions of the VFA, the Court finds that there is a different treatment when it
comes to detention as against custody. The moment the accused has to be detained, e.g. after
conviction, Article V, Sec. 10 of the VFA applies, stating that detention shall be by Philippine
authorities.
PAGE | 44

16. Marcos v. Manglapus (1989): The right to return to one’s country is not among the rights
specifically guaranteed in the Bill of Rights, although such right may be considered as a generally
accepted principle of international law. Still, it remains distinct and separate from the right to travel,
which enjoys a different protection under the International Covenant of Civil and Political Rights. It
would therefore be inappropriate to construe the limitations to the right to return to one's country
in the same context as those pertaining to the liberty of abode and the right to travel.
17. International School Alliance of Educators v. Quisumbing (2000): The ICESCR provisions
on the rights to equal treatment in employment and labor are violated when there are no substantial
distinctions to justify the differences in such treatment afforded to persons in like circumstances.
There is no evidence here that foreign-hires perform 25% more efficiently or effectively than the
local-hires. Both groups have similar functions and responsibilities, which they perform under similar
working conditions.
PAGE | 45

XVI. CURRENT EVENTS
THE PARIS AGREEMENT ON CLIMATE CHANGE
In December 2015 at the Paris Climate Conference (COP21), 195 countries adopted the Paris
Agreement on Climate Change which is the first-ever universal, legally binding global climate treaty.
The Agreement aims to hold the increase in global temperature average to well below 2°C above
pre-industry levels and to pursue efforts to limit the temperature increase to 1.5°C in order to
significantly reduce the risks and impacts of climate change.
Aside from the 1.5°C goal, the Paris Agreement also recognizes the following:
• Climate Justice – the Agreement recognizes the impact of mitigating climate change to
promote human rights, including the rights of indigenous peoples, women, youth and
migrants among others;
• Ecosystem integrity in climate actions – the Agreement recognizes integrity of all

ecosystems, including oceans, and the protection of biodiversity, recognized by some
cultures as Mother Earth when taking action to address climate change;
• Support in finance, technology and capacity building for all adaptation and mitigation efforts
– the Agreement recognizes the urgent need for developed countries to support the finance,
technology and capacity-development capabilities of developing countries in order to
enhance their pre-2020 actions;
• Loss and Damage – “loss” refers to complete disappearance of something (i.e., human lives,
habitat, species) while “damage” refers to something that can be repaired (i.e., roads,
buildings). The Agreement recognizes the important of averting, minimizing and addressing
loss and damage associated with the adverse effects of climate change and extreme weather
events (i.e., flooding, drought). In line with this, the Agreement sets to enforce the
continuation of the Warsaw International Mechanism (WIM) for Loss and Damage. The WIM
for Loss and Damage is an institution established in COP19 in 2013 to explore initial questions
about loss and damage. However, there is a move for the creation of a Loss and Damage
article separate from WIM that would ensure recovery and restoration of communities,
livelihoods and ecosystems adversely affected by extreme weather events and climate
change.
The Philippines is a signatory to the said Agreement. The Agreement is due to enter into force in
2020. However, it can be provisionally applied prior to the said date.
The United States of America as announced its intention to leave the Paris Agreement last June 1,
2017. However, in accordance with Article 28 of the agreement, the earliest possible withdrawal
from the agreement will be 4 years after the ratification, or on 04 November 2020.
PAGE | 46

THE REFUGEE CRISIS IN EUROPE
Background
Hundreds of thousands of people, mainly Syrians, Afghans, and Eritreans, have crossed the
Mediterranean Sea and the Balkans to reach Europe in a bid to flee war or persecution. One out of
three of them were Syrians which, according to the United Nations Refugee agencies, ought to
qualify as “refugees”. Under the 1951 Refugee Convention, the European States who are signatory
to the Convention cannot deport these refugees. This posed a policy problem to European
governments who must spread and allocate the said refugees across European States.
Refugee versus Migrant
Due to the domestic and regional tensions brought about by this influx, there is a debate whether
categorize these people as “refugees” or “migrants”. Under the 1951 Refugee Convention, a
“refugee” is a person who is outside the country of his nationality owing to a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular opinion and
is unwilling to avail himself of the protection of that country. On the other hand, a “migrant” is
anyone moving from one country to another, not because of a direct threat or persecution, but to
mainly improve their lives by finding work, or in some cases for education, family reunion, or other
reasons. Unlike refugees, migrants can safely return to their country of origin. The 1951 Refugee
Convention and its additional 1967 Protocol obligates States to give asylum to the former but not
the latter. This is in due to principle of non-refoulement (no forced return) under Article 33 of the
Convention. Thus, refugees cannot be deported but migrants can be for various reasons such as for
not possessing legal papers.
The European Complication
While the U.N. already identified the fleeing Syrians as refugees, the European Union introduced a
complication by creating a rule that the refugees’ application for asylum must be handled in the by
the country of their first arrival. Thus, refugees who have come from Greece, Italy or Austria and
have moved to another European State can be sent back to those countries. This rule was heavily
opposed by countries who had overwhelming numbers of first arrivals. Another argument for this
rule is that refugees who have moved from their country of first arrival are no longer refugees, but
are migrants who are seeking for better opportunities at another European State. The U.N. disagrees
with this by countering that a refugee does not cease to be a refugee or become a migrant simply
because they leave one host or travel to another. Instead, the U.N. insists that the Convention’s
definition must hold – that a person is a refugee because it lacks protection from their country of
origin and such status cannot not be altered by any supervening circumstances.
PAGE | 47

THE BREXIT
Background
The European Union (EU) is the most advanced regional union of States with notable features such
as the ‘EU Single Market’ and the ‘Schengen Area’. It was established by the Maastricht Treaty which
was further amended and modified by various succeeding treaties such as the Lisbon Treaty. The
United Kingdom (UK) has been an EU member since 1973. However, over the past four decades,
calls to break membership developed due to the influx of immigrants and refugees as well as the
growing contempt against non-democratically elected EU leaders in Brussels, among others. UK’s
Parliament, through Prime Minister David Cameron, recognized this discontent and pushed for a
referendum to determine the future of UK’s EU membership. This was dubbed as the ‘Brexit’ (British
Exit) referendum. On 24 June 2016, the ‘Leave’ camp won by a controversial margin over the
‘Remain’ camp by 51.9% (17,410,742) against 48.1% (16,141,241) of the total votes cast. The
fallout was immediate. The value of the pound cliff-dived, PM Cameron tendered his resignation
effective on October, 2016, and widespread divide in various demographics sparked throughout UK.
Notably, Scotland, Northern Ireland and the city of London heavily voted in favor of ‘Remain’ while
England and Wales heavily voted in favor of ‘Leave’. Scotland, in particular, seeks to retain EU
membership with its First Minister, Nicola Sturgeon, calling for a second Scottish referendum to
secede from the UK in order to achieve such goal. As of date, UK has yet to send a formal withdrawal
notification to the European Council.
Legal Analysis
The withdrawal of a State party from a treaty may take place only as a result of the application of
the provisions of the treaty or of the Vienna Convention on the Law of Treaties (VCLT) [VCLT, art.
42(2)]. Thus, for UK to formally withdraw from the EU, it must follow the withdrawal requirements
set by the Lisbon Treaty. Under Article 50 of the Lisbon Treaty, a member State which decides to
withdraw from the EU can do so (i) in accordance with its own constitutional requirements followed
by (ii) sending a notification of such decision to the European Council. After such notification, the
EU will then negotiate a withdrawal agreement with the withdrawing State. The Lisbon Treaty shall
cease to apply from such State from the date of the withdrawal agreement’s entry into force, or
failing that, two years after the Article 50 notification. Technically, the Brexit referendum is not
binding to UK’s Parliament. Hence, it cannot compel Parliament to trigger the withdrawal process.
In any case, for UK to withdraw, its constitution requires that the Parliament must first pass a bill
to repeal the 1972 European Communities Act which incorporated EU law into the UK. Thereafter,
its would-be Prime Minister can send the Article 50 notification to the European Council and formally
start the negotiation for the withdrawal agreement. Conversely, absent such repealing bill and
notification, the UK remains part of EU.
With respect to UK’s international obligations, Brexit will render them largely unaffected. This is
because the withdrawal of a State party from a treaty shall not in any way impair such State’s duty
to fulfill any obligation under international law independent of the treaty (VCLT, art. 43). Thus, with
respect to the refugee crisis, UK’s exit from the EU will not affect its obligation to grant asylum to
refugees as it remains a signatory to the 1951 Refugee Convention and its additional 1967 Protocol
– obligations which are independent from the Lisbon/Maastricht Treaty.
PAGE | 48

XVII. A DIGEST OF THE SOUTH CHINA SEA ARBITRATION CASE
I. Introduction
● The Parties to this arbitration are the Republic of the Philippines
(“Philippines”) and the People’s Republic of China (“China”).
● This arbitration concerns disputes between the Parties regarding:
○ The legal basis of maritime rights and entitlements in the South
China Sea;
○ The status of certain geographic features in the South China Sea, and;
○ The lawfulness of certain actions taken by China in the South China
Sea
● The basis for this arbitration is the 1982 United Nations Convention on the
Law of the Sea (“UNCLOS”). Both the Philippines and China are parties to the
Convention, the Philippines having ratified it on 9 May 1984, and China on 7
June 1996.
● UNCLOS was adopted as a “constitution for the oceans” in order to “settle all
disputes relating to the law of the sea,” and has been ratified by 168 parties.
UNCLOS, however, does not address the sovereignty of States over land
territory. Accordingly, this Tribunal has not been asked to, and does not
purport to, make any ruling as to which State enjoys sovereignty over any land
territory in the South China Sea. None of the Tribunal’s decisions in this award
are dependent on a finding of sovereignty.
● Moreover, this Award does not delimit any maritime boundary between
the Parties or involving any other State bordering on the South China
Sea. Although UNCLOS does contain provisions concerning the delimitation of
maritime boundaries, China made a declaration in 2006 to exclude maritime
boundary delimitation from its acceptance of compulsory dispute settlement,
something expressly permitted by UNCLOS. Thus, the Tribunal was not asked
to, nor does it purport to, rule on maritime boundaries.
● The disputes that the Philippines has placed before the Tribunal fall broadly
within four categories:
○ First, the Philippines has asked the Tribunal to rule on the source of
maritime rights and entitlements in the South China Sea.
Specifically, the Philippines seeks a declaration that China’s rights are
based on the Convention and not any claim of historic rights, and that
the “nine-dash line” is without legal effect.
○ Second, the Philippines has asked the Tribunal to resolve a dispute
between the Parties concerning the entitlements to maritime zones
that would be generated under the Convention by Scarborough
Shoal and certain maritime features in the Spratly Islands that
are claimed by both Parties.
○ Third, the Philippines has asked the Tribunal to resolve a series of
disputes between the Parties concerning the lawfulness of China’s
PAGE | 49

actions in the South China Sea. The Philippines seeks declaration that
China has violated the Convention by:
■ Interfering with the exercise of the Philippine’s rights by the
Convention, including with respect to fishing, oil exploration,
navigation, and the construction of artificial islands and
installations;
■ Failing to protect and preserve the marine environment by
tolerating and actively supporting Chinese fishermen in the
harvesting of endangered species and the use of harmful
fishing methods that damage the fragile coral reef ecosystem
■ Inflicting severe harm on the marine environment by
constructing artificial islands and engaging in extensive
land reclamation at seven reefs in the Spratly Islands
○ Fourth, the Philippines has asked the Tribunal to find that China has
aggravated and extended the disputes by restricting access to a
detachment of Philippines marines stationed at Second Thomas
Shoal
● China has consistently rejected the Philippines’ recourse to arbitration.
Nevertheless, this Award is binding on the Parties has per Article 296(1) of
UNCLOS and Article 11 of Annex VII (of UNCLOS).
● Despite its decision not to appear formally at any point the proceedings, China’s
Foreign Ministry on 7 December 2014 published a Position Paper which
argued that the Tribunal lacks jurisdiction because:
○ “The essence of the subject-matter of the arbitration is the sovereignty
over the relevant maritime features in the South China Sea”;
○ “China and the Philippines, have agreed, through bilateral
instruments and the Declaration on the Conduct of Parties in the
South China Sea, to settle their relevant disputes through negotiations,”
and;
○ The disputes submitted by the Philippines “would constitute an integral
part of maritime delimitation between two countries.”
● The Tribunal decided to treat the Position Paper and communications from China
as equivalent to an objection to jurisdiction and to conduct a separate
hearing and rule on its jurisdiction as a preliminary question.
● The Tribunal issued its Award on Jurisdiction and Admissibility on 29
October 2015. In its Award on Jurisdiction, the Tribunal reached conclusions
with respect to 7 of the Philippines’ 15 Submissions while deferring decisions on
seven other Submissions for further consideration.
II. Procedural History

• The Philippines initiated arbitration proceedings against China pursuant to the
Convention.
• China rejected the arbitration and stated that its position on the South China Sea
issues has been consistent and that “at the core are the territorial disputes over
some islands and reefs of the Nansha Islands.”
PAGE | 50

• Philippines appointed Judge Wolfrum, a German national, as a member of the
Tribunal in accordance with Article 3(b) of Annex VII to the Convention.
• China did not appoint an arbitrator so the President of the International Tribunal for
the Law of the Sea:
• Appointed Judge Pawlak, a national of Poland, as the second arbitrator
pursuant to Articles 3(c) and 3(e) of Annex VII to the Convention
• Appointed the remaining three arbitrators, in accordance with Articles 3(d) and
3(e) of Annex VII to the Convention
• The Tribunal issued an Order adopting the Rules of Procedure and fixing a date for
the Philippines to submit a Memorial that shall fully address all issues.
• Philippines submitted its Memorial addressing all aspects of the case including issues
of jurisdiction, admissibility, and the merits, and concluded with 15 submissions
setting out the relief sought.
• The Philippines wrote to the Tribunal concerning recent actions of China to prevent
the rotation and resupply of Philippine personnel stationed at Second Thomas
(Ayungin) Shoal, regarding China’s most recent actions in and around the same, and
expressing concern about China’s activities at several features in the South China
Sea, in particular the land reclamation at McKennan Reef, Hughes Reef, Johnson
Reef, the Gaven Reefs, and Cuarteron Reef.
• The Chinese government expressed that it will not participate in the arbitration
unilaterally initiated by the Philippines.
• Chinese Ambassador to the Netherlands sent a second letter to the members of the
Tribunal recalling China’s practice of resolving the disputes related to territory
through negotiation and noting China’s “legitimate right” under the Convention not
to accept any imposed solution or any unilateral resorting to a third-party
settlement, a right that it considered the Philippines breached by initiating the
arbitration.
• Philippines filed written responses to questions posed by the Tribunal. China did not
respond but instead published remarks reiterating that they are neither accepting
nor participating in the arbitration, as well as that the Arbitral Tribunal has no
jurisdiction.
• Tribunal issued its Award on Jurisdiction, which was unanimous, only addressed
matters of jurisdiction and admissibility; it did not address the merits of the Parties’
dispute.
• The Tribunal confirmed that it was ready to proceed with a hearing on the merits
and any outstanding questions of jurisdiction and admissibility and stated that it was
willing to make schedule adjustments if China decided to participate. China did not
comment.
• The Hearing on the Merits – oral presentations in two rounds in late November 2015
at the Peace Palace in The Hague, Netherlands.
III. Preliminary Matters

● The Legal and Practical Consequences of China’s Non-Participation
PAGE | 51

○ Throughout the proceedings, China has rejected and returned
correspondence from the Tribunal sent by the Registry, reiterating on
each occasion “that it does not accept the arbitration initiated by the
Philippines.” UNCLOS, however, expressly acknowledges the possibility
of non-participation by one of the parties to a dispute and confirms that
such non-participation does not constitute a bar to the proceedings.
○ The Tribunal has taken a number of measures to safeguard the
procedural rights of both China and the Philippines, such as ensuring
that all communications and materials have been promptly delivered to
the Ambassador of China in The Hague and providing multiple hearings
and opportunities for both parties to comment on certain materials
relevant to the dispute.
○ The Tribunal has considered and addressed the disadvantages of non-
participation such as (1) delay, (2) lack of opportunity to address any
specific issues that the Arbitral Tribunal considers not to have been
canvassed, or to have been canvassed inadequately, and (3) the
participating party being put in the ‘position of having to guess’ what the
non-participating party’s arguments might be and to ‘formulate
arguments for both States.’”
● Steps Taken by the Tribunal to Satisfy Itself that It Has Jurisdiction and that
the Claim is Well Founded in Fact and Law
○ The Tribunal has actively sought to satisfy itself as to whether it has
jurisdiction over the dispute. Following China’s decision not to file a
Counter-Memorial, the Tribunal requested the Philippines under Article
25 of the Rules of Procedure to provide further written argument on
certain jurisdictional questions and posed questions to the Philippines
both prior to and during the Hearing on Jurisdiction.
○ Article 9 of the Tribunal’s Rules of Procedure has led the Tribunal to take
steps to test the evidence provided by the Philippines and to augment
the record by seeking additional evidence, expert input, and Party
submissions relevant to questions arising in this merits phase, including
as to the status of features in the South China Sea, the allegations
concerning violations of maritime safety obligations, and claims about
damage to the marine environment.
● Summary of the Tribunal’s Award on Jurisdiction
○ There is a dispute between the Parties concerning the interpretation or
application of the Convention, which is a basis for the dispute settlement
mechanisms of the Convention
○ The Tribunal has jurisdiction to consider the Philippines’ Submissions
● Status and Effect of the Tribunal’s Award on Jurisdiction
○ The Tribunal’s Award on Jurisdiction is an “award of the arbitral tribunal”
for the purposes of Article 10 of Annex VII to the Convention. Pursuant
to Article 11 of Annex VII to the Convention, “[t]he award shall be final
and without appeal, unless the parties to the dispute have agreed in
PAGE | 52

advance to an appellate procedure. It shall be complied with by the
parties to the dispute.”
○ China has not, to date, accepted the decisions in the Tribunal’s Award
on Jurisdiction and has stated that the Award “is null and void, and has
no binding effect on China.” China’s objections are:
■ First, the essence of the subject-matter of the arbitration is
territorial sovereignty over several maritime features in the
South China Sea, which is beyond the scope of the UNCLOS.
■ Second, even assuming some of the claims were concerned with
the interpretation and application of the UNCLOS, they would still
be an integral part of maritime delimitation, which has been
excluded by China through its 2006 Declaration and consequently
is not subject to compulsory arbitration
■ Third, given that China and the Philippines have agreed to settle
their disputes in the South China Sea through negotiation, the
Philippines is precluded from initiating arbitration unilaterally.
■ Fourth, the Philippines failed to fulfill the obligation of exchanging
views with China on the means of dispute settlement.
○ After considering each of these objections, the Tribunal reaffirms in full
the conclusions and reasoning set out in its Award on Jurisdiction.
IV. The “Nine-Dash Line” and China’s Claim to Historic Rights in the Maritime
Areas of the South China Sea (Submissions No. 1 and 2)
● Submission No. 1: China’s maritime entitlements in the South China Sea, like those
of the Philippines, may not extend beyond those expressly permitted by UNCLOS
● Submission No. 2: China’s claims to sovereign rights jurisdiction, and to “historic
rights” with respect to the maritime areas of the South China Sea encompassed by
the so called “nine dash line” are contrary to the Convention and without lawful effect
to the extent that they exceed the geographic and substantive limits of China’s
maritime entitlements expressly permitted by UNCLOS
● The Philippines’ Position: Jurisdiction
○ China’s statements since May 2009 make a consistent distinction between
claims to “sovereignty” and claims to “sovereign rights and jurisdiction,” and
a further distinction between the “islands in the South China Sea and the
adjacent waters” and the “relevant waters”.
○ The nature of China’s claim as one of sovereign rights and jurisdiction is
confirmed by China’s conduct in (a) seeking to ban fishing by other States
within the ‘nine-dash line’; (b) interfering with the Philippines’ petroleum
exploration activities; and (c) offering concessions to oil blocks in areas within
the ‘nine-dash line’ but beyond the possible limits of China’s entitlements
under the Convention.
○ The exception to jurisdiction in Article 298 of the Convention is limited to
disputes involving “historic bays or titles.”, covered by Article 298(1)(a)(i).
PAGE | 53

The Philippines argues, “China’s claim of ‘historic rights’ within the area
encompassed by the nine-dash line is not covered by this article.
● The Philippines’ Position: China’s claim to Historic Rights

○ First, the Philippines submits that international law did not historically permit
the type of expansive claim advanced by China’s ‘nine-dash line’ and that,
even if China did possess historic rights in the South China Sea, any such
rights were extinguished by the adoption of the Convention.
○ Second, the Philippines argues that, on the basis of the historical record of
China’s activities in the South China Sea, China cannot meet the criteria for
having established historic rights within the ‘nine- dash line’.
● China’s Position
○ China claims historic rights within the area of the ‘nine-dash line’
● The Tribunal’s Consideration: Does China’s claim fall under Article 298(1)(a)(i) of
UNCLOS, which involves delimitations involving historic bays or titles?
○ Using Article 33 of the VCLT in interpreting UNCLOS, the Tribunal concluded
that the exception to jurisdiction in Article 298(1)(a)(i) is limited to disputes
involving historic titles and that China does not claim historic title to the waters
of South China Sea, but rather a constellation of historic rights short of title
○ Thus, the Tribunal has jurisdiction to consider Submissions No. 1 and 2
● Judgment on the Merits
○ The Tribunal concludes that China’s claim to historic rights to the living and
non-living resources within the ‘nine-dash line’ is incompatible with the
Convention to the extent that it exceeds the limits of China’s maritime zones
as provided for by the Convention. This is apparent in the text of the
Convention which comprehensively addresses the rights of other States within
the areas of the exclusive economic zone and continental shelf and leaves no
space for an assertion of historic rights.
○ It is also reinforced by the negotiating record of the Convention where the
importance of adopting a comprehensive instrument was manifest and where
the cause of securing the rights of developing States over their exclusive
economic zone and continental shelf was championed, in particular, by China.
○ Accordingly, upon China’s accession to the Convention and its entry into force,
any historic rights that China may have had to the living and non-living
resources within the ‘nine-dash line’ were superseded, as a matter of law and
as between the Philippines and China, by the limits of the maritime zones
provided for by the Convention.
○ The Tribunal distinguished China’s claims to historic rights between those
excess and incompatible with the Convention from those that are not.
■ China’s ratification of the Convention in June 1996 did not extinguish
historic rights in the waters of the South China Sea. Rather, China
relinquished the freedoms of the high seas that it had previously
utilised with respect to the living and non-living resources of certain
sea areas which the international community had collectively
determined to place within the ambit of the exclusive economic zone
PAGE | 54

of other States. At the same time, China gained a greater degree of
control over the maritime zones adjacent to and projecting from its
coasts and islands. China’s freedom to navigate the South China Sea
remains unaffected.
■ The Tribunal’s decision should not be understood to comment in any
way on China’s historic claim to the islands of the South China Sea.
● Conclusion
○ With respect to Submission No. 1, the Tribunal concludes that, as between the
Philippines and China, the Convention defines the scope of maritime
entitlements in the South China Sea, which may not extend beyond the limits
imposed therein.
○ With respect to Submission No. 2, the Tribunal concludes that, as between the
Philippines and China, China’s claims to historic rights, or other sovereign
rights or jurisdiction, with respect to the maritime areas of the South China
Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to
the Convention and without lawful effect to the extent that they exceed the
geographic and substantive limits of China’s maritime entitlements under the
Convention. The Tribunal concludes that the Convention superseded any
historic rights or other sovereign rights or jurisdiction in excess of the limits
imposed therein.
V. The Status of Features in the South China Sea (Submissions No. 3 to 7)

● In this Chapter, the Tribunal assesses the status of certain maritime
features and the entitlements to maritime zones that they are capable of
generating for the purposes of UNCLOS.
● Definition of Terms
○ Low-tide elevation: a feature that is exposed at low tide but covered
with water at high tide
■ Art. 13(1): “A low-tide elevation is a naturally formed area of
land which is surrounded by and above water at low tide but
submerged at high tide.”
■ Art. 13(2): “Where a low-tide elevation is wholly situated at a
distance exceeding the breadth of the territorial sea from the
mainland or an island, it has no territorial sea of its own.”
○ Islands: generic term to refer to features that are above water at high
tide
■ Art. 121(1): “An island is a naturally formed area of land,
surrounded by water, which is above water at high tide.”
○ High-Tide features: generic category of features that meet the
definition of an island in Article 121(1) of UNCLOS; “Rocks” and “fully
entitled islands” are thus both subsets of the broader category of “high-
tide features”; they are entitled to 12 nautical miles of territorial sea
○ Rocks: high-tide features that “cannot sustain human habitation or
economic life of their own” and which, therefore, pursuant to Article
PAGE | 55

121(3), are disqualified from generating an exclusive economic zone
(EEZ) or continental shelf
○ “Fully entitled islands”: high-tide features which are not rocks, and
which pursuant to Article 121(2) enjoy the same entitlements as other
land territory under UNCLOS (i.e. exclusive economic zone and
continental shelf)
○ Submerged features: features that are fully submerged, even at low
tide
● The status of the following 10 features are in dispute:
○ Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef,
McKennan Reef, Hughes Reef, the Gaven Reefs, Subi Reef, Mischief Reef,
and Second Thomas Shoal
● The Philippines submits that each of the 5 maritime features mentioned in its
Submissions 4 to 6 is a low-tide elevation: Second Thomas Shoal, Mischief
Reef, Subi Reef, “Mckennan Reef including Hughes Reef” (treated as one
feature), and the Gaven Reefs.
● The Tribunal notes that the inclusion of the term “naturally formed” in the
definition of both low tide elevation (Art. 13(1)) and an island (Art. 121(1))
indicates that as a matter of law, human modification cannot change the
seabed into a low-tide elevation or a low-tide elevation into an island.
Thus, despite the substantial human modification made on some of these
islands (e.g. installations, airstrips, etc.), the Tribunal considers that UNCLOS
requires that the status of a feature be ascertained on the basis of its earlier,
natural condition, prior to the onset of human modification.
● Art. 13(2) states that, except where a low-tide elevation falls within the breadth
of a territorial sea generated from a high-tide feature or mainland, it generates
no territorial sea of its own. Thus, a low-tide elevation is not entitled to
an exclusive economic zone or continental shelf, as necessarily implied in
Arts. 57 and 76.
● As for the other features, particularly Scarborough Shoal and all of the high-
tide features in the Spratly Islands, the Philippines seeks a declaration that
they are “rocks” within the meaning of Art. 121(3) of UNCLOS and thus
generate no exclusive economic zone or continental shelf. (Art. 121(3) states:
“Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf”).
● The following are the conclusions reached by the Tribunal with regard to the
interpretation of Art. 121(3):
○ First, the use of the word “rock” does not limit the provision to features
composed of solid rock. The geological and geomorphological
characteristics of a high-tide feature are not relevant to its classification
pursuant to Art. 121(3).
○ Second, the status of a feature is to be determined on the basis of its
natural capacity, without external additions or modifications intended
to increase its capacity to sustain human habitation or an economic life
of its own.
PAGE | 56

○ Third, with respect to “human habitation,” the critical factor is the
non-transient character of the inhabitation, such that the inhabitants
can fairly to be said to constitute the natural population of the feature,
for whose benefit the resources of the EEZ were seen to merit protection.
The term “human habitation” should be understood to involve the
inhabitation by a stable community of people for whom the feature
constitutes a home on which they remain (military personnel not
included).
○ Fourth, the term “economic life of their own” is linked the requirement
of human habitation and the two will in most instances go hand in hand.
The Tribunal considers that the “economic life” in question will
ordinarily be the life and livelihoods of the human population
inhabiting and making its home on a maritime feature or group
of features. Also, the phrase “on its own” means that economic life
must be oriented around the feature itself and not solely on the waters
or seabed of the surrounding territorial sea.
○ Fifth, the text of Article 121(3) is disjunctive, such that the ability to
sustain either human habitation or an economic life of its own would
suffice to entitle a high-tide feature to an EEZ and continental shelf. But
as a practical matter, the Tribunal considers that a maritime feature
will ordinarily only possess an economic life of its own if it is
inhabited by a stable human community.
○ Sixth, Article 121(3) is concerned with the capacity of a maritime
feature to sustain human habitation or an economic life of its own
(necessarily an objective criterion), not whether the feature is presently,
or has been, inhabited or home to economic life.
○ Seventh, the capacity of a feature to sustain human habitation or an
economic life its own must be assessed on a case-by-case basis.
○ Eighth, the Tribunal considers that the capacity of a feature should be
assessed with due regard to the potential for a group of small island
features to collectively sustain human habitation and economic life.
○ Ninth, the evidence of physical conditions alone is insufficient to
determine whether the features are capable of sustaining a human
habitation or economic life.
○ Thus, the Tribunal considers that the most reliable evidence of the
capacity of a feature will usually be the historical use to which it
has been put.
○ The Tribunal also concludes that there is no evidence for an agreement
based upon State practice on the interpretation of Article 121(3) which
differs from the interpretation as outlined.
● The following have been used as evidence to determine the status of these
features: satellite imagery, nautical surveying and sailing directions.
● The Tribunal concludes that the following are high-tide features:
○ Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef,
McKennan Reef, Gaven Reef (North)
PAGE | 57

● The Tribunal concludes that the following are low-tide elevations:

○ Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef, Second
Thomas Shoal
● The Tribunal concludes that the following are rocks that cannot sustain human
habitation or economic life of their own and accordingly, shall have no EEZ or
continental shelf:
○ Scarborough Shoal, Johnson Reef, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef (North), McKennan Reef, and the Spratly Islands
● Finally, the following are located within 200 nautical miles of the Philippines’
coast on the island of Palawan and are located in an area not overlapped by the
entitlements generated by any maritime feature claimed by China, and hence,
form part of the EEZ and continental shelf of the Philippines:
○ Mischief Reef and Second Thomas Shoal
VI. Chinese Activities in the South China Sea (Submissions No. 8 to 13)
● The Philippines’ Submission No. 8 requests the Tribunal to declare that
China has unlawfully interfered with the enjoyment and exercise of the
sovereign rights of the Philippines with respect to the living and non-living
resources of its exclusive economic zone and continental shelf
● China has objected to or acted to prevent petroleum exploration by the
Philippines in the South China Sea w/in 200 nautical miles of the Philippines’
baselines on several occasions:
○ Petroleum Blocks at Reed Bank and the M/V Veritas Voyager incident
○ West Calamian Petroleum Block
○ North-West Palawan Petroleum Blocks
● China has also acted to assert its jurisdiction over fisheries in the South China
Sea and to restrict fishing by Philippine nationals in areas within 200 nautical
miles of the Philippines’ baselines:
○ China’s Prevention of Fishing by Philippine Vessels at Mischief Reef
○ China’s Extension of Jurisdiction over Fisheries in the South China Sea
● The Philippines’ Position
○ Jurisdiction: there are no maritime features in the South China Sea
claimed by China that can generate entitlements to an exclusive
economic zone in the areas relevant to its Submission No. 8
○ Rights in the EEZ: China’s interference with oil and gas exploration and
exploitation, and measures adopted to prevent fishing in these areas are
violative of UNCLOS
○ China has sovereignty and sovereign rights in the questioned areas
● The Tribunal’s Decision
○ China has, through the operation of its marine surveillance vessels with
respect to M/V Veritas Voyager on 1 to 2 March 2011 breached Article
PAGE | 58

77 of the Convention with respect to the Philippines’ sovereign rights
over the non-living resources of its continental shelf in the area of Reed
Bank.
○ The Tribunal further finds that China has, by promulgating its 2012
moratorium on fishing in the South China Sea, without exception for
areas of the South China Sea falling within the exclusive economic zone
of the Philippines and without limiting the moratorium to Chinese flagged
vessels, breached Article 56 of the Convention with respect to the
Philippines’ sovereign rights over the living resources of its exclusive
economic zone.
● The Philippines’ Submission No. 9 states that China has unlawfully failed to
prevent its nationals and vessels from exploiting the living resources in the
Philippines’ EEZ, specifically Mischief Reef and Second Thomas Shoal
○ The Tribunal has jurisdiction to consider its Submission No. 9, for the
same reasons set out with respect to its Submission No. 8
○ The Philippines does not have rights in the questioned areas
○ China has, through the operation of its marine surveillance vessels in
tolerating and failing to exercise due diligence to prevent fishing by
Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in
May 2013, failed to exhibit due regard for the Philippines’ sovereign
rights with respect to fisheries in its exclusive economic zone.
○ Accordingly, China has breached its obligations under Article 58(3) of
the Convention.
● The Philippines’ Submission No. 10 states that China has unlawfully
prevented Philippine fishermen from pursuing their livelihoods by interfering
with traditional fishing activities at Scarborough Shoal since 2012, in particular
their interactions with Philippine fishermen proximate to the feature
○ China violated its obligations under Article 2(3) of the Convention, and
considers this conclusion supported indirectly by reference to Articles
51(1) and 62(3) of the Convention.
○ Additionally, China has violated Articles 279 and 300 of the Convention
○ China has “unlawfully endangered justice by exacerbating the dispute
between it and the Philippines concerning their maritime rights and
entitlements in the vicinity of Scarborough Shoal
○ China claims sovereignty over Scarborough Shoal and asserts that its
waters constitute a traditional fishing ground for Chinese fishermen.
○ China has, through the operation of its official vessels at Scarborough
Shoal from May 2012 onwards, unlawfully prevented Filipino fishermen
PAGE | 59

from engaging in traditional fishing at Scarborough Shoal, without
prejudice to the question of sovereignty over Scarborough Shoal
● The Philippines’ Submissions 11 and 12(b) state that:
○ 11: China has violated its obligations under the Convention to protect
and preserve the marine environment at Scarborough Shoal, Second
Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson
Reef, Hughes Reef and Subi Reef
○ 12(b): China’s occupation of and construction activities on Mischief Reef
violate China’s duties to protect and preserve the marine environment
under the Convention
● Documents adduced by the Philippines record the following:
○ A number of instances since the late 1990s in which Chinese fishing
vessels have engaged in environmentally harmful fishing practices and
the harvesting of endangered or threatened species.
○ China undertook some construction and land reclamation on seven
features in the Spratly Islands [(a) Cuarteron Reef, (b) Fiery Cross Reef,
(c)Gaven Reef (North), (d) Johnson Reef, (e) Hughes Reef, (f) Subi Reef,
and (g) Mischief Reef] from the early 1990s to 2013
○ China’s actions have damaged the diverse and fragile ecosystem of the
South China Sea
○ China has not directly stated its position with respect to the allegations
as presented in the Philippines’ Submissions No. 11 and 12(b).
Nevertheless, China’s position can be discerned from contemporaneous
official statements.
○ China has, through its toleration and protection of, and failure to prevent
Chinese fishing vessels engaging in harmful harvesting activities of
endangered species at Scarborough Shoal, Second Thomas Shoal and
other features in the Spratly Islands, breached Articles 192 and 194(5)
of the Convention.
○ China has, through its island-building activities at Cuarteron Reef, Fiery
Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef
and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123, and
206 of the Convention
● The Philippines Submissions No. 12(a) and 12(c) state that China’s occupation
of and construction activities on Mischief Reef:
○ (a): violate the provisions of the Convention concerning artificial islands,
installations and structures
○ (c): constitute unlawful acts of attempted appropriation in violation of
the Convention
○ China’s activities at Mischief Reef violate Articles 60 and 80 of the
Convention, relating to artificial islands, installations. and structures.
PAGE | 60

and constitute unlawful acts of attempted appropriation under the
Convention.
○ China emphasised the economic character of its activities and explained
that the construction was intended to provide shelter for fishermen from
local winds; in short, that China’s activities are for civilian purposes
○ China has, through its construction of installations and artificial islands
at Mischief Reef without the authorisation of the Philippines, breached
Articles 60 and 80 of the Convention with respect to the Philippines’
sovereign rights in its exclusive economic zone and continental shelf.
○ The Tribunal further finds that, as a low-tide elevation, Mischief Reef is
not capable of appropriation.
● The Philippines’ Submission No. 13 requests a declaration that China has
breached its obligations under the Convention by operating its law enforcement
vessels in a dangerous manner causing serious risk of collision to Philippine
vessels navigating in the vicinity of Scarborough Shoal
○ China has operated its law enforcement vessels in a dangerous manner,
causing “serious risk[] of collision” to Philippine vessels navigating in the
vicinity of Scarborough Shoal, and that China has breached its
obligations relating to safe navigation under Articles 94 and 21 of the
Convention and related provisions in the Convention on the International
Regulations for Preventing of Collisions at Sea, 1972
○ China, through contemporary statements, considers its actions at
Scarborough Shoal to have been generally lawful
The Tribunal’s Decision
○ China has, by virtue of the conduct of Chinese law enforcement vessels

in the vicinity of Scarborough Shoal, created serious risk of collision and
danger to Philippine vessels and personnel. The Tribunal finds China to
have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS and, as a
consequence, to be in breach of Article 94 of the Convention.
VII. Aggravation or Extension of the Dispute Between the Parties (Submission No.
14)
● The Philippines’ Submission No. 14 states that China has unlawfully
aggravated and extended the dispute by, among other things:
○ (a) interfering with the Philippines’ rights of navigation in the waters at,
and adjacent to, Second Thomas Shoal;
○ (b) preventing the rotation and resupply of Philippine personnel
stationed at Second Thomas Shoal;
○ (c) Endangering the health and well-being of Philippine personnel
stationed at Second Thomas Shoal; and
PAGE | 61

○ (d) Conducting dredging, artificial island-building and construction
activities at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef,
Johnson Reef, Hughes Reef, and Subi Reef
● The Philippines’ Position:
○ On Jurisdiction: The Tribunal has jurisdiction to consider its Submission
No. 14; Articles 297 and 298 of the Convention do not exclude the
Tribunal’s jurisdiction to consider conduct that aggravates a dispute
pending arbitration
○ The Philippines has a right to have a dispute settled peacefully, and that
China is under a corresponding obligation not to aggravate or extend a
dispute pending its resolution
○ China has dramatically and dangerously altered the status quo pendente
lite since the commencement of this arbitration, by aggressively
challenging “the long-standing presence of the Philippines at Second
Thomas Shoal” and “unlawfully preventing” the routine rotation and
resupply missions “that the Philippines has been conducting consistently
since 1999.
○ China has on a number of occasions commented on the importance of
good faith and the duties incumbent on States Parties pursuant to the
Convention. It has consistently asserted that it has indisputable
sovereignty over the Nansha Islands, which include the Ren’ai Jiao, and
the adjacent waters. China hereby strongly protests and firmly opposes
to the Philippines’ reinforcement of a military vessel illegally ‘grounded’
on the Ren’ai Jiao.
○ China notes that its “indisputable sovereignty over Nansha Islands and
their adjacent waters” includes Mischief Reef and Fiery Cross Reef,
among others.
○ The Tribunal thus reserved any final decision on its jurisdiction with
respect to Submission No. 14 for further consideration in this
Award.1454 The Tribunal also notes that the Philippines’ amendment of
its claims to include Submission No. 14(d) took place following the
Tribunal’s Award on Jurisdiction and that the Tribunal has not yet
considered its jurisdiction in respect of the Philippines’ amended claim.
○ The Tribunal found that that China has in the course of these proceedings
aggravated and extended the disputes between the Parties through its
dredging, artificial island-building, and construction activities. In
particular, while these proceedings were ongoing:
■ (a) China has aggravated the Parties’ dispute concerning their
respective rights and entitlements in the area of Mischief Reef by
building a large artificial island on a low-tide elevation located in
the exclusive economic zone of the Philippines.
■ (b) China has aggravated the Parties’ dispute concerning the
protection and preservation of the marine environment at
PAGE | 62

Mischief Reef by inflicting permanent, irreparable harm to the
coral reef habitat of that feature.
■ (c) China has extended the Parties’ dispute concerning the
protection and preservation of the marine environment by
commencing large-scale island-building and construction works
at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson
Reef, Hughes Reef, and Subi Reef.
■ (d) China has aggravated the Parties’ dispute concerning the
status of maritime features in the Spratly Islands and their
capacity to generate entitlements to maritime zones by
permanently destroying evidence of the natural condition of
Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, and Subi Reef.
VIII. The Future Conduct of the Parties (Submission No. 15)

● The Tribunal considers it beyond dispute that both Parties are obliged to comply
with the Convention, including its provisions regarding the resolution of
disputes, and to respect the rights and freedoms of other States under the
Convention. Neither Party contests this. The Tribunal is therefore not persuaded
that it is necessary or appropriate for it to make any further declaration.
---END---
PAGE | 63

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PUBLIC INTERNATIONAL LAW

2017 edition by:

Ralph Samuel T. Yu, Mayumi G. Matsumura,

The following material is the intellectual property of the Ateneo Society of

I. Concepts of Public International Law................................................................ 1

A. O BLIGATIONS ERGA OMNES

Q. What are obligations erga omnes?

Q. What are some examples of obligations erga omnes?

Q. What is jus cogens? (Bar 2012)

Q. What happens when a treaty conflicts with a jus cogens norm?

Q. What are the rules considered to be jus cogens?

Q. Explain the concept of ‘ex aequo et bono’.

Q. What is its difference from equity?

Q. What is International Law?

Q. What is Municipal Law?

Q. Explain the dualist and monist theories.

Q. In case of conflict between international & domestic law, which prevails?

III. SOURCES OF INTERNATIONAL LAW

Q. What are the sources of International Law? (Bar 2012)

Q. What is the difference between formal and material sources of IL?

Q. How can one bind his State in entering a treaty?

Q. How are treaties interpreted?

Q. What is the difference between a State-party and a signatory to a treaty?

Q. What if treaty and custom contradict each other?

Q. What is the Philippine practice with regard to treaties?

Q. What is Customary International Law?

Q. What are the requisites of Custom?

Q. How long should a practice be before it is considered customary?

Q. Should there be total uniformity for a practice to be considered customary?

Q. Should ALL states adhere to a practice for it to be customary?

Q. What is opinio juris? (Bar 2008)

Q. What is the value of Resolutions adopted by the U.N. General Assembly?

Q. What is the concept of “persistent objector”?

C. G ENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW

Q. What are Generally Accepted Principles of International Law?

D. JUDICIAL D ECISIONS AND M OST H IGHLY Q UALIFIED PUBLICISTS

Q. Is the ICJ bound by its prior decisions? (Bar 2013)

Q. Who is a most highly qualified publicist?

IV. SUBJECTS OF INTERNATIONAL LAW

Q. Who are the subjects of International Law?

Q. What are the standards for each requisite of Statehood?

Q. What are the theories of recognition of States?

Q. How are International Organizations subjects of international law?

Q. What is the principle of specialty?

Q. How are Corporations subjects of international law?

Q. How do individuals become subjects of international law?

V. DIPLOMATIC AND CONSULAR LAW

Q. How are diplomatic relations between States established?

Q. How are diplomatic relations terminated?

Q. Explain the inviolability of the premises of the mission.

Q. Explain the inviolability of diplomatic agents.

Q. What is the rule on immunity of diplomatic agents from criminal jurisdiction?

Q. When can a receiving State declare a diplomat as a ‘persona non grata’?

P ROVISION D IPLOMATIC A GENTS H OUSEHOLD A DMINISTRATIVE H OUSEHOLD S ERVICE PRIVATE

VCDR, art. 30.

P ROVISION CONSULAR OFFICERS H OUSEHOLD CONSULAR H OUSEHOLD S ERVICE STAFF HONORARY

CIVIL Immune from Civil No immunity Same as No immunity No immunity Same as

real property 49(1). 49(1). on wages on

personal or official personal